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Dear Greg Sargent: YOU may not know what Scalia and Alito were up to yesterday. But I do.*

The chief justice said almost nothing.

Supreme Court Appears Sharply Split in Case on Health Law, Adam Liptak, New York Times

Okay, so how well did my predictions from three days ago hold up at the argument yesterday* in King v. Burwell?

Well, I got the outcome right, but not the particulars of how it will occur.  By saying almost nothing, Roberts said everything you need to know: The ACA will remain undisturbed.  He will join with the four Dem justices in an opinion that simply invokes standard statutory-interpretation methods that the Court employs when, say, it’s the Tea Party whose interests that long-established mechanism serves. In, y’know, garbage statutes. There’s no way—seriously; there really is no way—that Roberts would sit through 80 minutes of argument, in this of all cases, almost completely silently, if he intended to vote to interpret the four-word phrase at issue as the statute’s challengers ask.

Roberts will leave Kennedy to his federalism obsession—his bizarre the-Civil-War-and-the-Reconstruction-amendments-are-figments-of-the-political-left’s-imagination claims. (Roberts shares this view, but only as a means to specific Conservative Legal Movement ends, such as nullifying the Voting Rights Acts.)  Sure, the majority opinion will invoke the fancy the-federal-government-can’t-coerce-the-states-not-even-by-subterfuge federalism ground tailored specially for Kennedy.  But it will do so only to undermine the challengers’ belated switch argument: that Congress intended that the subsidies be available only in states that had set up and run their own websites, and that the purpose of the provision in the ACA that provided that the federal government would set up and run websites for individual state healthcare markets in states that do not set up and run their own was to mislead the states about the effect of a failure by the state to set up and operate its own website. (Congress knows better than to try that kind of thing and think it could get away with it! Unless, of course, it knew it wouldn’t get away with it.)  Originally, the challengers had argued that the four-word phrase at issue was an inadvertent error.

Congress’s clever ruse was predictably effective, since, as Kagan, Sotomayor, Ginsburg and Breyer noted, the federally run websites would have no products available and no customers, so the state legislators who bought the head fake weren’t really all that gullible in not catching on.

Then again, as Dahlia Lithwick reported, Scalia commented to Solicitor General Donald Verrilli: “How can the federal government establish a state exchange. That is gobbledygook.”  Which surely it is, since although each state has its own separate insurance market under the ACA, available only to residents of the respective state, the ones set up and run by the federal government were intended to have no actual insurance policies available, or customers to buy policies even if one or two policies should happen to pop up on one of those non-state exchanges.  And Scalia—no fool, he—does now recognize that that could undermine the challenger’s Plan B argument that Congress gamed this all out and decided to lull the states into a false sense that they could default to the federal government the setup and operation of the exchanges, with no ill effects.  Pun intended.  So Scalia needed a Plan B to save Plan B as something he could assert in his dissent.

But Scalia’s pointing this out wasn’t really the main gist of what he was up to yesterday. What he really was up to was having his cake and eating it too. He apparently waited until it was becoming clear that Roberts and Kennedy would do the heavy lifting for him and Thomas and Alito, and then largely reverted to his November 2014 garbage-statutes position—that is, to his pre-January 21, pre-Fair Housing Act case argument comments about how the Court normally interprets complex, multi-section federal statutes that intend to establish a coherent policy.

Well, inadvertent garbage, or instead advertent garbage; whatever. Either scenario works in this silly save-us-from-ourselves-please-while-we-protest-too-much kabuki act.  Just as Sens. Orrin Hatch, Lamar Alexander, and John Barrasso indicated in a Washington Post op-ed published last Sunday that was unabashedly directed to Roberts, Kennedy and Scalia.

Specifically, this trio opened its message with:

Wednesday, the Supreme Court will hear oral arguments about whether the Obama administration used the IRS to deliver health insurance subsidies to Americans in violation of the law. Millions of Americans may lose these subsidies if the court finds that the administration acted illegally. If that occurs, Republicans have a plan to protect Americans harmed by the administration’s actions.

Oh, okay. Republicans have a plan to protect Americans harmed by the administration’s actions that for the last year are providing them with healthcare, by enabling them to continue to have the healthcare insurance that is harming them.  In other words: Please, Supreme Court, save our party’s election chances in 2016, just as we quietly asked you a couple of months back, Antonin Scalia, to do.  But since it takes only one of you to do this for us, the rest of you don’t have to participate.  One sacrificial lamb is all that’s necessary.  The rest of you, write a dissent along the lines of … well, I’ll let Greg Sargent explain:

At oral arguments before the Supreme Court yesterday, two of the conservative justices — Samuel Alito and Antonin Scalia — both floated versions of the idea that, if the Court does strike down Obamacare subsidies in three dozen states, it might not be that big a deal, because surely lawmakers would then fix the problem and avert disruptions for millions.

This had more significance than it first appeared.

Here are the key quotes. After Solicitor General Donald Verrilli claimed that a Court decision against the law would cut off subsidies “immediately,” producing “very significant, very adverse effects” for “millions of people,” Alito suggested that the Court could side with the challengers but delay the ruling “until the end of this tax year.”

That would mean people would not abruptly lose their subsidies; the suggestion was that if the Court did this, the disruptions might not be immediate, and perhaps somehow contingency plans could come together to soften the blow for those millions of people. Verrilli suggested the Court might have this authority, but disputed whether doing this would actually make much of a difference in practice, because many of the states would be unable to set up exchanges — keeping the subsidies flowing — by the end of the year.

Whereupon this happened:

JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the — you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I — I –

[Laughter.]

That was indeed a richly comic moment! But it was also very significant. The conservative Justices implicitly suggested that the consequences of ruling with the challengers — which Scalia himself termed “disastrous,” though there may have been a hint of sarcasm there — are in fact weighing on the Court, and they themselves floated the idea that a legislative fix might mitigate those consequences.

Sargent goes on to say:

I don’t pretend to know for certain what motivated the conservative justices to say this stuff. But here’s a guess: The idea that a legislative solution might soften the disruptions could make it easier for Anthony Kennedy (who appeared torn over federalism concerns, particularly in light of the punishment that might be inflicted on states) and/or John Roberts (who seemed at least open to the idea that Chevron deference should be accorded to the government) to rule with the challengers.

Okay, well, unlike Sargent, I do pretend to know for certain what motivated the conservative justices to say this stuff.  Or at least what motivated Scalia.  He just enjoys cake.  It’s his favorite dessert.  Despite all those calories.  Especially when he has the cake and eats it too.

Kennedy will join the majority’s ruling only in its bottom line: the ACA survives in its current interpretation.  He’ll write a concurring opinion explaining that this is a necessary outcome, in order to avoid so offending the sovereign dignity of 36 states that, in self-defense, they would enter into a military treaty with Russia and attack Washington using an allied force comprised of the Armed Forces of the Russian Federation and the states’ national guard units.  Which itself would violate the Constitution’s design because it obviously would have the effect of coercing the states into increasing their own military budgets significantly.

But Kennedy’s concurrence will be a sideshow.

Laughter.  Applause.  Curtain.

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*Typo-corrected to reflect the day that the post was posted (Thursday), rather than the day when I began writing it, which was Wednesday, the day of the argument. The post also has been edited slightly (and typo-corrected elsewhere) for clarity.

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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Do take advantage of your brand new prayer opportunities. Along with your newly created job opportunities and all your new freedoms.

The most important turn in Monday’s Supreme Court ruling in Town of Greece v. Galloway—a case that probes the constitutionality of explicitly religious prayer in legislative sessions—isn’t that the courts no longer have a role in policing the Establishment Clause, or that pretty much any sectarian prayers can be offered at town meetings so long as they do not “threaten damnation, or preach conversion” to minority religions. No, I think the interesting change in the court’s posture today is that sectarian prayer in advance of legislative sessions is no longer characterized merely as “prayer.” In the hands of Justice Anthony Kennedy, who writes for five justices, these benedictions are now free and unfettered “prayer opportunities.” And “prayer opportunities” are, like “job creators” and “freedoms,” what make America great.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

My Polish-Jewish-immigrant grandmother, who’s been spinning in her American-cemetery grave since yesterday morning (trust me on that), might calm down once she realizes the benefits of this new all-in-one-case body of law.  Which are that town residents who’d rather not take advantage of their prayer opportunity but who do want to attend a town-government meeting can plug their iPhone earphones into their ears and enjoy some music until the policymaking stuff begins. And not have to worry about appearing rude.

Hopefully, someone will give some visual signal that the prayer opportunity is over and that everyone who didn’t grab the opportunity when it was available will have to wait until Sunday church service for another one. Although there probably isn’t a prayer that that will happen. And if all hell breaks loose before Sunday, like during the policymaking debate, that missed prayer opportunity will be regretted. My grandmother would have appreciated being forewarned.

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Showtime At The Supreme Court

Dan emailed me several days ago asking whether I thought I should write a preshow (my word, not his) post about next week’s marathon Supreme Court oral arguments on the constitutionality of Obamacare, a.k.a., the Affordable Care Act.  Six hours of argument, two each day, Monday through Wednesday, in which the Court will hear argument, first, on whether the courts even have “jurisdiction” (the legal authority) to even consider the challenges to the Act’s constitutionality before the challenged provisions of the Act have gone into effect, and, then, on the challenges to separate parts of the Act by various challengers who will be directly affected by the respective provision. 

It promises to be a long three days.  And by the time Dan emailed me, I already was sick of reading previews.  I wrote back to Dan:

I don’t think there’s anything to say, really, at this point.  There’ve been a zillion articles/commentaries about it within the last week or so, but they don’t really say anything.  Mostly they just kind of speculate about how Roberts, Scalia and Kennedy might vote, based on things like what Scalia wrote in a concurring opinion in a Commerce Clause case a few years ago (Scalia expressed an “expansive” view of Congress’s Commerce Clause powers), and how Roberts wants to be remembered. It’s obligatory writing for people like Adam Liptak, the NYT Supreme Court correspondent, but pretty pointless, really.

But two articles published on Thursday, one by former (longtime) New York Times Supreme Court correspondent Linda Greenhouse, who in retirement writes a periodic commentary column in the Times, and Slate Supreme Court and general-legal-issues writer Dahlia Lithwick, are, I think, worth reading. 


Greenhouse’s is titled “Never Before,” and the thrust of her article is that those two words—“never before”—are the sum and the (non)legal substance of the challengers’ arguments.  “Unprecedented,” she notes, “is a description, not an analysis.”  Or a legal argument.  It is instead merely a political argument.  And transparently so, which is why she predicts that the Court will uphold the statute, by a comfortable margin. 

Well, actually, she predicts that the Court will uphold the statute by a comfortable margin because, well, for all the incessant hype, this is not, under extensive and pretty darn clear Supreme Court precedent relevant to each of the separate stated constitutional grounds argued, a close case at all—and because John Roberts cares a lot about how the Court is perceived during his tenure as its chief. 

Or, more accurately, at least in my opinion, because under Supreme Court precedent this is not a close case and  this is too high-profile a case for its outcome not to impact the public’s perception of the Court.  By which I mean, and I think she means, that while Roberts & Co. regularly make out like bandits in the night, hijacking the law and transforming it into reflection of a 1980s Federalist Society checklist, they do so only to the extent to which they expect that they can escape widespread public revulsion.  Which in turn is determined by the extent to which the news media actually focuses on these ideological-agenda rulings before the Court issues the ruling.  

That, after all, is how we got Citizens United v. FEC.  Roberts & Co. misjudged.  Oops.  Well, for heaven’s sake … I mean … y’know … who knew that the public would, um, actually get the Citizens United ruling?

Lithwick’s article makes much the same point as Greenhouse’s—that as a matter of law, this is not a close case—but with a slight twist.  After giving a nod of recognition to the Greenhouse , which was published in that morning’s paper, Lithwick says that while she expects that the Court will uphold the statute, she’s not all that sure.  As a legal matter, she says, this case is not the case of the century nor of the decade nor even of this term.  Unless, of course, a 5-4 majority surprises almost all the legal commentators who actually know the law and follow the Court.   

Which, she says, wouldn’t surprise her all that much, because the case is not really about the law at all, but instead about “optics, politics, and public opinion.”  But ultimately, she thinks, Roberts and one or two of the others just won’t think this case is worth the cost in public opinion. 

I agree.  It’s not as if they get to pick a president in this one.  There are, as Lithwick notes, other cases in their pipeline that could well do that. The oral arguments in those cases are, like the arguments next week, likely to be mere shows.  But with a more limited-release audience and opposite results.

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