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.
The Supreme Court has judicially enacted a result that was being achieved by the democratic process in state after state. Recognition of same-sex marriage is right and just, and is consistent with a remarkable change in public opinion for which every person who was open about his or her sexuality to relatives and friends deserves credit.
But my happiness for my gay friends and relatives is tempered because this is very bad constitutional law. Hard as it is for many to understand, while our Constitution insulates certain enumerated rights from being overridden by political majorities, it does not enact five justices’ personal conception of justice.
Nothing in the Constitution’s text or our history supports a finding that a right to same-sex marriage is a protected liberty interest. Nor can the Equal Protection Clause of the 14th Amendment (adopted in 1868) be reasonably construed to constitutionally require a change in the definition of marriage as it was universally understood until the beginning of this century.
Many will find this objection impossibly bloodless. But raw judicial power can enact results one despises as well as those one celebrates. I would have put my trust in the tolerance of the American people. It was winning and would have won.
In treating arguments against the liberal position or in favor of the legal enforcement of morality, Feinberg refrains from distorting his opponents' claims or presenting their arguments in an unfairly unfavorable light. He rarely criticizes a view before taking pains to present the strongest argument he can muster on its behalf. He does not pretend that the sole alternative to the libertarian permissiveness he espouses is an authoritarian oppression that no honorable critic of liberalism would endorse or even tolerate. Nor does he resort to questioning the motives or character of those who do not share his liberal faith. In the most ancient and best tradition of philosophy, he treats his interlocutors as partners with him in the quest for truth.
The Supreme Court has read some sloppy legislation in a way most beneficial to millions of Americans now covered by medical insurance with the help of a federal subsidy. Many politicians will also benefit as a result.
Since the passage of the Affordable Health Care Act, Republican opponents of the Obama administration have made the act Public Enemy No. 1. However, as affordable health care has begun to settle in, its political value as a target has increasingly waned.
Had the Supreme Court negated the federal subsidy system, Republican candidates would have had to answer for the mayhem that was sure to follow. The court’s sane reading of the act has removed that political burden.
More important, the nation should now be able to move forward with insured health care as a permanent part of the lives of millions of Americans previously left by the side of the road. There will, I hope, be improvements to come, but the debate should now forever turn from health care as a privilege to health care as an entitlement and how best to maintain it.
Sag Harbor, N.Y.
Note from KBJ: According to the Pew Research Center, 53% of Americans disapprove of ObamaCare, while 45% approve. Good luck to those politicians who support it!
[A]nyone who applies to another a standard of which he would complain if it were applied to himself has no moral grounds for his complaint. He is being both immoral and illogical. It follows, then, that the Golden Rule formulates a fundamental requirement of justice, that everyone's conduct must be judged by the same standards, and that no one has, in general, any warranted claim to a special or privileged position. It is therefore at the basis of the Principle of Justice, that what is right or wrong for one person must be right or wrong for any similar person in similar circumstances. Stated differently but equivalently: What is right for one person cannot be wrong for another, unless there is some relevant difference in their natures or circumstances.
(Marcus G. Singer, "The Golden Rule," Philosophy 38 [October 1963]: 293-314, at 302)