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.
