The New York Times‘s esteemed Supreme Court reporter Linda Greenhouse has a piece discussing the Supreme Court’s decision to grant review in the King v. Burwell case, which challenges some of the subsidies being paid out under government’s interpretation of the the Affordable Care Act. Greenhouse complains that the Court is acting politically by taking the case. It seems to me, however, that some aspects of her complaint are at least as political as the Supreme Court behavior she is condemning.
Greenhouse begins by recalling the Rehnquist Court’s supposedly political power play in taking Bush v. Gore and ruling in favor of Bush. She suggests that a proper resolution of the dispute should have been worked out by Congress, but that “the Bush forces got to the Supreme Court first.” Surely Greenhouse has not forgotten that Al Gore lost in the initial count in Florida and then took his dispute to the courts. The Bush forces were only able to get before the Supreme Court because the Gore forces began the lawsuit in the first place. Many people have complained that in 2000 the Supreme Court “selected” the president. They overlook the fact that this could only happen because the Florida Supreme Court had already gotten into the act and was trying itself to “select” the president by permitting recounts to go on according to whatever standards the various local election boards decided to choose.
She then goes on to lament that the Court now has chosen to hear King v. Burwell in defiance of the “normal criterion for Supreme Court review.” There is, she points out, no conflict among the appellate courts that the Supreme Court needs to address by taking the case. It therefore just appears to be taking it because it wants to–or, more precisely, because four justices want to, hoping that they can win a fifth vote to strike down the subsidies and strike a blow against the law. Greenhouse here omits to note that the whole purpose of the writ of certiorari–the tool by which the Court exercises appellate review–is to permit the Court to take whatever cases it wants to take. If you are going to complain that the Court is basically exercising its own discretion here in a way that undermines the legitimacy of the final outcome, you would have to make the same complaint about myriad other cases from the past–which I don’t think Greenhouse intends to do.
More fundamentally, her complaint here simply begs the question. She thinks that the four conservatives on the Court voted to review the case just because they oppose the law for political reasons and want a chance to gut it, and they think they might be able to persuade the Chief Justice to go along with them. They might say, however, that they find the appellate court decisions on the question in the King case either wrong or at least highly questionable, and they think it is important to correct the error sooner rather than later. They might say that it is important to the rule of law that the government be bound by actual statutory language, and that the Court needs to vindicate that principle.
This is where the argument really has to be made: who has the better interpretation of the statute? Sensing that the four conservatives might well win the support of the Chief Justice, Greenhouse preemptively suggests that an outcome not to her liking will be illegitimate. After all, she observes, a widely cited precedent holds that the Court is supposed to defer to an administrative agency’s interpretation of federal law when the law is ambiguous. But this again begs the question. Deferring does not mean simply accepting. It means entertaining a presumption in favor of the administrative agency’s interpretation. But such deference does not rule out the possibility that a strong enough statutory argument could overcome that presumption.
Moreover, if a majority of justices vote to strike down the subsidies, they might not even admit that the law is ambiguous. They might well say that the language is crystal clear: the federal government may create exchanges within states, but subsidies may go only to consumers in an exchange established “by” a state. There is nothing contradictory here.
These are the kinds of arguments that will have to be hashed out to judge the merits of what the Court does with this case in the end.