A view from the Courtroom: Today’s oral argument
on Mar 4, 2015 at 5:48 pm
If there was any doubt that Wednesday was a big day at the Supreme Court, a reminder came as a group of reporters waited in line in a hallway to pass through security to enter the courtroom.
Around 9:30 a.m., just a half-hour before the arguments in King v. Burwell were to begin, Supreme Court police officers asked us to make an opening. One of the named parties, Health and Human Services Secretary Sylvia Burwell and her entourage of a few aides and security personnel passed through.
Dressed in a chocolate-brown pantsuit, Burwell soon made her way to the front row, center bench, of the public gallery to take in the arguments over the Internal Revenue Service regulation. She is seated next to U.S. Surgeon General Vivek H. Murthy, and close to where her predecessor as HHS secretary, Kathleen Sebelius, took in hours of arguments about the health-care law over three days in 2012.
As for the parties on the other side, the somewhat elusive four Virginia residents who have challenged the IRS rule, we don’t know for sure if they are present today. But one of them, Douglas Hurst, did appear before the press cameras outside the building after the arguments, where his wife read a prepared statement.
Sebelius is also in the courtroom today, in the second row of the public gallery, next to Chris Jennings, a former White House health policy adviser under President Obama.
These first few rows of the packed gallery are a mix of members of Congress, including several members of the leadership. They are seated in an oddly bipartisan fashion.
Directly behind Burwell are U.S. Rep. Paul Ryan of Wisconsin, the 2012 Republican vice-presidential nominee, and Sen. Sander Levin of Michigan, the ranking Democrat on the House Ways and Means Committee.
In the front row near the press section is an even more powerful collection. Sen. Orrin Hatch, Republican of Utah, the chairman of the Finance Committee, seems to be in the same seat he occupied during the 2012 ACA arguments. (Note to Hatch: You may want to update your office Web page, which still has you as the ranking minority member of that committee.)
Next to Hatch is Sen. Lamar Alexander, Republican of Tennessee, the chairman of the Health, Education, Labor, and Pensions Committee. For some reason, as your correspondent takes his place in the press section, he feels compelled to call out to Alexander and mention his plan to attend a speech of his on Thursday on the fiftieth anniversary of the Moynihan Report, about black poverty in the United States. “If it doesn’t get snowed out,” the senator says, referring to the forecast for seven more inches of snow in Washington.
Making the row bipartisan are four high-ranking Democrats: Rep. Nancy Pelosi of California, the former House speaker and now minority leader; Sen. Patty Murray of Washington; Sen. Dick Durbin of Illinois, the minority whip of the upper house; and Sen. Ron Wyden of Oregon.
At the other side of the courtroom, we spot former Sen. Christopher Dodd, the Connecticut Democrat who is now the chairman (and essentially chief lobbyist) of the Motion Picture Association of America. Why he feels compelled to be here today is not immediately evident.
The whole scene seems like something out of “House of Cards,” so it’s even more appropriate when the actor Neal Katyal, who has a bit part as a Supreme Court advocate in a recent episode of the Netflix drama, shows up and takes a seat near Sebelius. We hear that Katyal is thinking of making a career switch to the law, which would make sense because he is really the former acting U.S. solicitor general under President Obama and now an appellate specialist in private practice.
At about 9:45 a.m., a Supreme Court police officer approaches Rep. Ryan, who is reading a newspaper that no regular civilian would have been able to bring into the courtroom, While notepads and perhaps small documents are tolerated in the public gallery, newspapers are not, and the officer confiscates Ryan’s without regard for his office.
The Court’s session opens promptly at 10, and Justice Antonin Scalia delivers the opinion in Alabama Department of Revenue v. CSX Transportation Inc. It’s a case that requires the Court to interpret the Railroad Revitalization and Regulation Reform Act of 1976, or the so-called 4-R Act. That’s not the statute whose interpretation has the interest of those in the courtroom today. (The case, about differing tax treatment of fuel for rail carriers versus water carriers, has been here before, and because the Court has remanded it, could come back one day.)
When King v. Burwell gets underway, the challengers’ lawyer, Michael A. Carvin, starts making his merits arguments, only to be stopped in his tracks within seconds by Justice Ruth Bader Ginsburg. She wants to know whether the standing of the four Virginia residents challenging the IRS rule will be an obstacle for the Court in deciding the case.
Ginsburg pursues the issue for about five minutes, then says, “I don’t want to detain you on this anymore, but I will ask the government what their position is on standing.”
Carvin thanks her, then is able to get exactly one sentence out before the questions start rolling towards him. When he does finally get one of his points across, Justice Sonia Sotomayor has a question, but first tells him, “Take a breath.”
In the gallery, Secretary Burwell looks intently toward the bench. Sen. Durbin has his reading glasses on, and is taking seemingly endless notes on a very slim pad of paper. Next to him, Sen. Wyden is scratching the occasional note on small yellow cards. The courtroom has indeed become the House of Cards.
When Justice Anthony M. Kennedy explains one of his federalism concerns to Carvin, and suggests the challengers’ arguments might counterintuitively raise a constitutional problem with the ACA, Carvin tells him that “the government has never made that argument.”
“Sometimes we think of things the government doesn’t,” Kennedy replies. As laughter fills the courtroom, Rep. Pelosi leans over to Sen. Alexander to repeat the line he has missed.
Carvin, who argued part of the 2012 challenge to the ACA, is pugnacious at the lectern, and the Justices often have to try harder than usual to interrupt. When Carvin resists one of Justice Elena Kagan’s interruptions, she says, “Wow. You’ve been talking a long time.” She allowed him “two more sentences” before returning to her question.
Often when a member of the Court was posing a question, Carvin would step back from the lectern and gulp from his water glass, which was soon empty. A marshal’s aide brought him another one after he sat down.
As Carvin’s alloted time neared an end, Chief Justice John G. Roberts Jr. said, “Why don’t you take an extra ten minutes and maybe we’ll give you a little bit more of a chance to talk.”
Fat chance. Justice Kagan immediately jumps in, saying, “Well, then, I’ll ask a question.”
When U.S. Solicitor Donald B. Verrilli gets up for his turn, the Chief Justice tells Verrilli he will get an extra ten minutes, too.
Verrilli spends about six minutes on the standing issue, before launching into his merits arguments. He comes across as patient, even serene. As is his style, when asked a tough question, he often promises he will be responsive, but only after finishing another point first. Or, as he said one time, “Justice Scalia, I’m going to answer that question by talking about the legislative process, because I think it is quite relevant.”
Speaking of the legislative process, the biggest laugh of the day comes when Justice Scalia presses Verrilli about the dire predictions about how a decision striking down the IRS rule might cause the ACA to unravel.
“What about Congress?” Scalia asks him. “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?
Verrilli replies, “Well, this Congress, your honor, I .. I… Of course, theoretically, they could.”
The members of Congress in the gallery join in the general laughter at that.
There may not have been a clear direction on which way the Court would rule. But even a bunch of officeholders with years of political experience know that the nine Justices before them hold all the cards on the health law for now.