Chief Justice John G. Roberts Jr.’s dissent asks of his colleagues, “Just who do we think we are?”
As someone directly affected by the marriage ruling, I would like to tell the chief justice who I am. I am a 64-year-old American. I am a seminary graduate and law school dean of students. I am a taxpayer and a voter. I am the husband of the man I met and fell in love with 42 years ago.
I am a believer in America’s promise and ideals. I am one of the countless gay and lesbian Americans who have waited in hope that one day our country would recognize the simple fact that we are deserving of equality under the law.
That’s who I am, Chief Justice Roberts. Who are you?
Note from KBJ: How do you get to be a law-school professor, much less a dean, when you can't even read? Here is what Chief Justice Roberts said, in context:
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? (boldface added)
Shorter Roberts: "We, the justices of the Supreme Court, are unelected and unaccountable to the people. Who do we think we are, legislators?" Gary Clinton is a homosexual first and a law professor second.
Rush Limbaugh coined a new term today, almost certainly unwittingly. He used the term "full-frontal attack" while talking about progressivism's attempts to change our culture. (For some reason, Limbaugh calls his opponents liberals, when in fact they're progressives. The real liberals today are conservatives.) The adjective "full-frontal" comes from television and movies, as in "Clint Eastwood's new movie has full-frontal nudity." It means that the actress in question has nothing covering her breasts or pubic area. (Toplessness is not full-frontal nudity; it is partial-frontal nudity.) The term "frontal attack" comes from the military. As the name implies, it is an attack on an enemy's front as opposed to the enemy's flank or rear. I got a kick out of this, so I thought I'd share it with you.
Journalists should not try to pick winners and losers. That’s the job of voters.
Surveys can be useful for gauging what voters care about. But using them to predict elections has become a reckless addiction. Let’s get off them. Consumers of journalism can help. Every time you read, listen to or click on a predictive political story, you enable the angels of our lesser nature. So just say no to horse-race coverage and we will get better.
But there is a bigger lesson. Pollsters are having a harder time predicting elections because they can’t figure out who is likely to vote. No doubt there are methodological challenges. But the core problem is that shocking numbers of Americans don’t exercise their franchise.
Finding who will vote isn’t quite like finding a needle in a haystack. But when little more than one eligible citizen in three actually votes (as in the 2014 midterm election), we have more than a crisis in polling.
Low participation is worsening polarization, contributing to gridlock and undercutting the legitimacy of the system. Fixing polling is the least of our problems. Fixing our democracy by re-engaging its constituents is the real challenge.
The writer is editorial director and senior vice president for news at NPR and a former national political correspondent and Washington bureau chief of The New York Times.
Three justices dissented in King v. Burwell, 576 U.S. ____ (2015), namely, Antonin Scalia, Clarence Thomas, and Samuel Alito. Scalia wrote for himself and the other two. His dissent is the same length (21 published pages) as the majority opinion by Chief Justice John Roberts Jr. (See here for my analysis of the majority opinion.) Scalia, who has written widely on legal interpretation, has scathing words for the majority. In his very first paragraph, he says that the majority's interpretation of the pertinent statutory words is "quite absurd" (page 1). Scalia's bombastic rhetoric isn't for everyone. Those who agree with him tend to like it, while those who disagree with him are likely to find it off-putting or even infuriating. I will focus on Scalia's reasoning rather than on his rhetoric, though I will comment on his rhetoric at the end of this post.
Scalia's dissenting opinion has five parts plus a conclusion. In Part I, which is short, he describes the statute (which I call "ObamaCare") and states the issue. The issue, he says, is "whether someone who buys insurance on an Exchange established by the Secretary [i.e., the federal government] gets tax credits" (page 2). Scalia thinks the answer is obvious: no. It's so obvious, in fact, that he wonders why the case is before the Supreme Court. Instead of giving his fellow justices the benefit of the doubt, he questions their motives. "Under all the usual rules of interpretation, . . . the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved" (pages 2-3).
Let's review this. Scalia is so confident that his construction of the statute is correct that he can't even imagine how someone—especially someone as intelligent as he is—could construe it differently. But six of his fellow justices do construe it differently. The only explanation for this is that they're being dishonest. They don't really think there's a good case to be made for their construction; instead, they're determined to "save" ObamaCare at all costs. This is breathtaking in its disrespectfulness. Instead of taking his colleagues's argument at face value and dealing with it honestly and forthrightly, Scalia questions their motives and, indirectly, their integrity. As a philosopher, I find this way of dealing with disagreement appalling, even sickening. Intellectual honesty requires imputing good motives, not bad motives, to one's interlocutors. It requires making the best of one's opponents' arguments, not the worst. Scalia sometimes finds it difficult to separate the person from the person's argument. If you disagree with him, you're either stupid or wicked.
In Part II of his dissenting opinion, Scalia says that he agrees with the majority that interpretation of a statutory provision requires attention to the "whole law" (page 3) rather than to the provision in isolation, but he thinks attention to the whole law in this case supports his conclusion rather than the majority's conclusion. I will spare you the details of Scalia's argument, but the gist of it is this:
The majority's interpretation of the statutory language treats it as a nullity, which violates a canon of statutory construction.
The majority's interpretation of the statutory language "makes nonsense of other parts of the Act" (page 6).
The majority's interpretation "overlooks the rudimentary principle that a specific provision governs a general one" (page 8).
The majority's interpretation conflates oddity or anomalousness with ambiguity (see page 9). That statutory language is odd (anomalous) does not mean that it is ambiguous. Unfortunately for the majority, it needs ambiguity, not merely oddity, for its argument to go through.
The thrust of Part II is to undermine the majority's claim that the statute is ambiguous. As Scalia puts it, "Reading the Act as a whole leaves no doubt about the matter: 'Exchange established by the State' means what it looks like it means" (page 12).
In Part III, Scalia criticizes the majority's reliance on, or resort to, Congressional purpose. "Statutory design and purpose matter only to the extent they help clarify an otherwise ambiguous provision" (page 13). Since, according to Scalia, the provision in question is not ambiguous, Congress's purpose in enacting the statute is irrelevant. But of course the majority disagrees with Scalia that the provision is unambiguous, so Scalia must engage the majority's argument to the effect that it was Congress's purpose (plan, design, intention) to make tax subsidies available in all exchanges and not merely in state exchanges.
Scalia's argument is that "The purposes of a law must be 'collected chiefly from its words,' not 'from extrinsic circumstances'" (page 13). Without going into detail, let me say that Scalia thinks the words of the statute alone do not suffice to show that Congress's purpose was to make tax subsidies available to all. He adds (on page 15) that "No law pursues just one purpose at all costs." The appeal to purposes therefore fails. "All in all," Scalia writes, "the Court's arguments about the law's purpose and design are no more convincing than its arguments about context" (pages 16-7).
In Part IV, which is short, Scalia addresses the majority's claim that ObamaCare exhibits "inartful drafting." So what, he says. "This Court . . . has no free-floating power 'to rescue Congress from its drafting errors'" (page 17). This isn't a case, after all, in which there is a misprint in a published statute. For all we know, "tax credits were restricted to state Exchanges deliberately—for example, in order to encourage States to establish their own Exchanges" (page 17).
In Part V, Scalia discusses the respective roles of Congress and the judiciary. Congress, he says, has legislative power; the judiciary, by contrast, has "power to pronounce the law as Congress has enacted it" (page 18). The remedy for bad legislation is not judicial correction or improvement but better legislation. "It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility" (page 19).
In his concluding section, Scalia returns to his (in my opinion scurrilous) accusation that the majority is result-oriented. Its objective, he thinks, was to "save" ObamaCare, even if that meant arguing dishonestly. One wonders whether Scalia realizes that the same accusation can be made of him. The majority might have said (but didn't) that Scalia's objective was to "undermine" ObamaCare, even if that meant arguing dishonestly.
If you're wondering what I think of all this, I'll tell you. (You don't have to twist my arm.) Statutory interpretation is not the sort of activity that generates a single "right" or correct answer. Reasonable judges, making use of the various canons of statutory construction that they have at their disposal, can arrive at different answers to the same question. This doesn't mean they are allowing their personal moral or political views to dictate their conclusions (although an unscrupulous judge could do that). In fact, I'm sure that doesn't describe either Roberts or Scalia. Both justices are acting in good faith (or so we should assume); both are intelligent and informed; both are diligent and conscientious; both are trying to do justice. It's just that the materials with which they're working are not such as to generate a single "right" answer. Had there been a single "right" answer to the question raised by this case, it's unlikely to have made it to the Supreme Court.
If you've studied normative ethical theory, perhaps the following will help you understand what I'm saying. The process of statutory construction (i.e., interpretation) is like W. D. Ross's method, which, taking prima facie duties as inputs, requires judgment to arrive at a verdict about one's actual or all-things-considered duty. It is not like Jeremy Bentham's method (the Felicific Calculus), which is algorithmic. Just as, using Ross's method, two reasonable, intelligent, informed people can disagree about whether a particular broken promise is right, all things considered, two reasonable, intelligent, informed judges can disagree about whether a particular statute is ambiguous, and, if so, how to construe it. In this case, six justices came down on one side and only three on the other. Disagreement of this sort does not imply unreasonableness, stupidity, or ignorance of relevant facts, any more than the fact that two people have contradictory beliefs implies that at least one of the beliefs is unjustified or one of the people unreasonable. Nor does it imply intellectual dishonesty, sinister interest, or result orientation. Scalia would do well to refrain from making such imputations.
It's been one year to the day since I did my last bike rally, in Waxahachie, Texas. (The word "last," here, means both "most recent" and "final.") Some of you may recall my avowed goal of doing 1,000 bike rallies. I ended up with 576. Oh, sure, I could have kept going and accomplished my goal, but when I compared the weekly grind of bike rallies with the alternative of riding from my house several times a week and staying just as fit, I decided to give up the rallies. Don't think for a moment that I've slowed down, however. Just the opposite: I'm riding more than ever. (Well, not quite. This year will be my second-best year in 35, mileage wise.) In the past year, I have ridden my bike 148 times, which is an average of once every 2.4 days. I've pedaled 4,540.7 miles, which is an average of 12.44 miles per day and 87.0 miles per week. My resting heart rate is in the low to mid-40s, which means I'm in great shape. (The lowest heart rate I've seen in the past 30 years is 42.)
Although I liked bike rallies in some respects, or even many respects, there were things about them that I never liked and that became tiresome. First, I had to rise insanely early every Saturday from March to November, sometimes as early as 4:00. Second, there were long drives, often in the dark, to get to the rallies, and then long drives to get back home. This is dangerous as well as expensive. Third, I had to pay a fee to ride. Some rally fees had reached $40, and one was an outrageous $50. I pay nothing when I ride from my house, and the trails on which I ride are wonderful (literally). Fourth, by the time I got home from a bike rally, most of the day was gone, I had missed various sporting events on television, and I was fatigued from the driving and riding. Most of my rides now are two hours long, which means they hardly disrupt my day. At the appointed hour (usually 11:00), I stop what I'm doing, ride, shower, and get back to what I was doing. Also, I now have Saturdays with my family. Do I regret my decision to stop doing rallies after 25 years? Not a bit. As far as I'm concerned, I have thrown out the bad things about riding my bike and kept the good things.
Seven-Inning Felix got tired after six innings, having thrown 96 pitches. (That's an average of 5.3 pitches per out, which translates to 144 pitches for nine innings.) He had a 1-0 lead when he left the game. Seattle's relief pitchers have already given up two runs, so Felix won't be getting his 11th victory. If he's as good as people like David Fryman say he is, why can't he stay in the game longer than six innings? Isn't an ace supposed to be physically strong, mentally tough, and durable? Isn't that why he's paid so many millions of dollars each year? Felix is the opposite of an ace; he's a joker.
An educated guess about America's near future. Take it, if you wish, with a grain of salt.
Sometime before the 2016 election, the stock market will crash and we'll go into Great Depression Two. Republicans will get most voters to blame Obama and Democrats. The GOP will win the White House and both houses of Congress. Then they'll shred the social safety net to almost nothing, at the time the nation needs it most.
There'll be a big increase in petty crime, mainly people shoplifting to feed their loved ones. The prison population will explode and we'll all find ourselves in a full-bore police state.
Have a nice day.
Note from KBJ: Things can get worse than they are? Six and a half years of "hope and change" are killing us!
Those of us who are lawyers (and, in my case, a philosopher of law to boot) are having a field day with two recent Supreme Court rulings. The first, King v. Burwell, 576 U.S. ____ (2015), involves construction (the lawyer’s word for interpretation) of a statute, popularly known as ObamaCare. (President Barack Obama has called it that as well, so I don’t mean to be disparaging.) The second, Obergefell v. Hodges, 576 U.S. ____ (2015), is a constitutional case. Partly for my own edification, and partly because I may lecture on one or both of these cases in a future Philosophy of Law course, I decided to explain to my blog readers what happened in each case. I will devote a separate post to each opinion, beginning, today, with Chief Justice John Roberts Jr’s majority opinion in King v. Burwell.
Roberts, writing for himself and five other justices (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), begins his opinion by describing ObamaCare (i.e., the Patient Protection and Affordable Care Act). The issue to be resolved in this case, he says, “is whether the Act’s tax credits are available in States that have a Federal Exchange” (page 2). In Part I of his opinion, he describes the origin, structure, and purpose of ObamaCare. He goes on to explain how the case got into the federal system and how it reached the Supreme Court.
To make a long story short, the Internal Revenue Service (IRS), an agency of the federal government, was charged by statute with implementing certain provisions of ObamaCare. The IRS issued a rule (an administrative regulation) to the effect that the words “an Exchange established by the State” included Federal Exchanges. This made citizens in all 50 states eligible for tax subsidies. Four citizens of the state of Virginia challenged this rule in federal court, which eventually dismissed their suit. The court ruled that the statute is unambiguous and that it makes tax subsidies available in all 50 states.
The ruling was affirmed on appeal, but the appellate court ruled that the statutory language is ambiguous. Roberts agreed. Ordinarily, when statutory language is ambiguous, a court will defer to the interpretation of that language given by the relevant governmental agency, in this case the IRS. The Supreme Court case that requires such deference is Chevron (1984). (I omit the citation.) Roberts chooses not to apply the Chevron test. That test, he says, is predicated on the assumption that Congress used ambiguous language on purpose as an implicit delegation to the agency. But that assumption does not apply in this case, Roberts says, because the ambiguous language concerns “a question of deep ‘economic and political significance’ that is central to this statutory scheme” (page 8). It’s unlikely that Congress intended to delegate so much authority to any agency, much less the IRS.
Having dismissed Chevron as inapplicable (see the two full paragraphs on page 8), Roberts says that the Court’s task is “to determine the correct reading” (later, he says “determine the meaning”) of the statutory language de novo, i.e., without recourse to any administrative ruling or regulation. If the statute is not ambiguous, i.e., if its “language is plain” (page 8), then the Court must “enforce it according to its terms” (page 9). If the statute is ambiguous, however, the Court must give it a determinate meaning. (This process is called statutory construction.) Roberts then adds an important qualification: In determining whether statutory language is ambiguous, and, if it is, in determining what it means, one must look at the language in context, not in isolation. In other words, one must read the words of a statute “with a view to their place in the overall statutory scheme” (page 15).
After several pages of close analysis, Roberts concludes that the phrase “an Exchange established by the State” is “properly viewed as ambiguous” (page 12). This means that it can mean either of two things: (1) State Exchanges only; or (2) all Exchanges (State or Federal). The next step is to ascertain the legislative purpose, for that will fix, or at least narrow, the meaning of the phrase. Since the stated purpose of ObamaCare is to stabilize individual insurance markets with the aim of expanding coverage, the ambiguous language must be interpreted so as to accomplish (or at least not thwart) this objective. Over and over, Roberts says that Congress “meant” (i.e., intended) this or “couldn’t reasonably have meant that.” He points out that interpreting the words as the petitioners suggest, to mean State Exchanges only, would produce a “calamitous result that Congress plainly meant to avoid” (page 21).
Roberts concludes his opinion by saying that, while the meaning of the provision in question may seem plain when viewed in isolation, it is not plain when viewed as part of a statutory whole. “[T]he context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase” (page 20).
The final section of the opinion expresses Roberts’s view of the proper role of the judiciary. He says the role of the courts is not to make law but to say what the law is. “[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done” (page 21).
It’s been said, in light of this decision, that Roberts, or the Roberts Court as a whole, is turning to the left. Nothing about this case supports that assertion. From the fact that the Left is pleased with a certain ruling, it doesn’t follow that the ruling is leftist in any straightforward sense. What we see in Roberts’s opinion, rather, is a certain attitude toward judging. A judge, he insists, is not a legislator. A judge should respect the legislature (in this case, Congress) and seek to give effect to its decisions, however those decisions might be characterized in political terms (as leftist, rightest, &c). This deferential attitude is part of judicial (or legal) conservatism, or what we might call judicial modesty. (The opposite of modesty is arrogance.)
It would be a grave mistake to conflate judicial (or legal) conservatism and political conservatism, for there is no necessary connection between the two. For all we know, Roberts would have voted against ObamaCare had he been a member of Congress. For all we know, he would have vetoed the bill had he been president. For all we know, he thinks ObamaCare is unwise, foolish, or just plain bad public policy. For all we know, he is among the 53% of Americans who disapprove of ObamaCare. That he gave it a saving construction shows only that he does not conceive it to be his role, as a judge, to unravel it. After all, if the American people don’t like ObamaCare, it is open to them to elect representatives who will repeal or amend it. That’s how democracy works.
A decision by the Supreme Court holding that the Constitution entitles people to marry others of the same sex would be far more radical than any of the decisions cited by Eskridge. Its moorings in text, precedent, public policy, and public opinion would be too tenuous to rally even minimum public support. It would be an unprecedented example of judicial immodesty. That well-worn epithet "usurpative" would finally fit.