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A “view” from the Courtroom: Barbs and backslaps in two big cases

Entering the day, there are seven decisions remaining, and opinion days set for today and Friday, with Monday likely. So those entering the Courtroom today have a pretty good chance of hearing something significant. They will not be disappointed.

From the same-sex marriage cases, Mary L. Bonauto of Gay & Lesbian Advocates and Defenders is here again today, as is James D. Esseks of the American Civil Liberties Union. In the public gallery, lead petitioner James Obergefell is seated near Chad Griffin of the Human Rights Campaign. Esseks tells us that if the same-sex marriage cases are not announced today, some of the couples from the Kentucky case plan to come for the final sessions.

We don’t immediately see any prominent opponents of same-sex marriage in the Courtroom, which is not completely full.

In the VIP section, Joanna Breyer, the wife of Justice Stephen G. Breyer; and Virginia Thomas, the wife of Justice Clarence Thomas, take seats this morning.

When the Court takes the bench at 10 a.m., Justices Thomas and Anthony M. Kennedy are carrying papers. This can be a sign of who will be reading from the bench, but it can be deceiving. Some Justices have an aide place any papers they need at their desk before the session begins. (As things turn out, only one of them will be reading from those papers.)

Chief Justice John G. Roberts, Jr., announces that Justice Kennedy has the opinion of the Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, about the availability of disparate-impact claims under the Fair Housing Act.

We’ve had several notable decision in the last couple of weeks in which the author’s first few lines have pretty much given away the goods. The Chief Justice, on Monday, began his summary in Horne v. Department of Agriculture with government trucks arriving at the farmers’ door at 8 a.m. – a strong indication that the Court was about to rule for the Hornes. And the decision by Justice Samuel A. Alito, Jr., to start his summary in Ohio v. Clark by describing the defendant sending his girlfriend across state lines to work as a prostitute was not a harbinger of a decision in the defendant’s favor.

Justice Kennedy’s style is to neutrally provide the background and allow the suspense to build. He follows that style today, though he pretty quickly gets to the goods: “The Court now holds” that a disparate impact claim may be brought under the Fair Housing Act.

Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund, seated in the second row of the bar section, lets out a big sigh of relief and bobs her head in relief.

Justice Kennedy continues walking through his opinion, including how the logic of Court’s decisions in Griggs v. Duke Power Co. and Smith v. City of Jackson, regarding disparate-impact claims under Title VII and the Age Discrimination in Employment Act, respectively, “are applicable to the FHA.” And that Congress had ratified such liability in its 1988 amendments to the Act.

Kennedy describes his opinion’s qualifications, about when courts should find disparate-impact liability and how judges must enter remedial orders that are consistent with the Constitution, meaning “race-neutral” when possible.

He notes the lineup: Justices Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined his opinion, with Justice Clarence Thomas filing a dissent and Justice Alito filing a dissent joined by Roberts, Thomas, and Justice Antonin Scalia.

The Courtroom pauses briefly in anticipation of a dissent from the bench in this case, but there is none.

At 10:08 a.m., Chief Justice Roberts announces that he has the decision of the Court in King v. Burwell. Everyone in the Courtroom shifts in their seats a bit.

Roberts begins by describing how the Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform, with the states expanding coverage in the 1990s, only to run into the problem of many people waiting until they were sick to buy insurance coverage.

“This led to an ‘economic death spiral’” as premiums rose higher and higher and the number of people buying insurance sank lower and lower, and insurers began to leave the market.

The mention of “death spirals” appears promising for supporters of the ACA, though every member of the Court maintains a somewhat grim face throughout the Chief Justice’s delivery.

Roberts goes on to describe the Massachusetts response to this problem, and how the federal law adopted a version of the three key reforms that made that state’s system successful. These are, in brief, the guaranteed issue and community rating system, the requirement to purchase insurance or make a payment to the IRS, and the system of refundable tax credits to make insurance more affordable.

He then gets to the issue in this case: Whether the ACA’s tax credits are available in states that “have a federal exchange rather than a state exchange.”

Although others have said the case boils down to seven, or four, or even one, key word or words, Roberts notes that the law provides that the amount of the tax credit depends in part on whether the taxpayer has “enrolled in an exchange established by the State under Section 1311 of the act.” (His written opinion adds emphasis to “established by the State,” so he appears to endorse the four-word school.)

After explaining that it is the Court’s task to determine the correct reading of the key provision, the Chief Justice repeatedly refers to looking at statutes in context.

“Our duty, after all, is ‘to construe statutes, not isolated provisions,’” he says, quoting a 2010 decision.

He works his way through, noting that “the Act clearly contemplates that there will be qualified individuals on every exchange.”

When the Chief Justice says that “the Affordable Care Act contains more than a few examples of inartful drafting,” many in the Courtroom snicker. He notes that key parts were written behind closed doors, that much of it was passed using the complicated budgetary procedure known as “reconciliation,” and that it bypassed the Senate’s normal sixty-vote filibuster requirement.

“As a result, the Act does not reflect the type of care and deliberation that one might
expect of such significant legislation,” Roberts says. He describes a political cartoon favored by Justice Felix Frankfurter, ““in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand.  We’ll just have to pass it to find out what it means.’”

The numerous members of Congress who were present for the oral arguments in King v. Burwell are not in evidence today to receive this scolding in person.

Roberts wraps up his more than ten minutes of delivery by saying that “it is implausible that Congress meant the Act to operate” as the challengers contend.

“In a democracy, the power to make the law rests with those chosen by the people,” he says. “We have not been chosen by the people, and we are not accountable to them.”

The Chief Justice explains that Justice Scalia has filed a dissent, joined by Justices Thomas and Alito.

“Indeed,” Scalia says after a brief pause.

“This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary [of Health and Human Services] also gets tax credits,” Scalia says. The current secretary, Sylvia M. Burwell, was also here for the oral arguments but does not appear to be here today.

“You would think the answer would be obvious,” Scalia continues. “The Secretary of Health and Human Services is not a State; so an Exchange established by the Secretary is not an Exchange established by the State; so people who buy insurance through such an Exchange get no money.”

“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the state,’” he continues.

Scalia is unusually calm and deliberate as he delivers his dissent for about ten minutes. Justice Alito sips from his coffee mug as Scalia speaks.

“The Court tries to palm off the words ‘by the State’ as a drafting error,” he says. “But this Court has no free-floating power to rescue Congress from its drafting mistakes. Let us not forget, moreover, that ‘Exchange established by the State,’ appears in seven provisions of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places?”

Scalia brings in events of three years ago. “Today’s decision changes the rules of statutory interpretation for the sake of the Affordable Care Act,” he says. “That, alas, is no novelty.”

With the Chief Justice, also the author of the Court’s 2012 opinion in National Federation of Independent Business v. Sebelius, listening intently on his left, Scalia says the Court rewrote “major parts of the law in order to save them,” twice in that decision and now a third time in King.

“We really should start calling the law SCOTUScare,” Scalia says.

The “interpretive somersaults” of the Court’s two decisions on the ACA “will surely be remembered through the years,” he adds. “And these two cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and that it is prepared to sacrifice all the usual interpretive principles—that it is prepared to do whatever it takes—to uphold and assist its favorites.”

While his written opinion says, “I dissent,” from the bench Scalia says, “I respectfully dissent.”

After the Justices have disappeared behind their red velvet curtains, U.S Solicitor General Donald B. Verrilli, Jr., who argued the Obama administration’s case in King (and argued as an amicus for the position that won in the housing case), smiled broadly.

He first hugged his principal political deputy solicitor general, Ian H. Gershengorn. They exchanged backslaps as they embraced.

Verrilli then did the same with Edwin S. Kneedler, a career deputy solicitor general who, like Gershengorn, was on the government’s brief in King with the Solicitor General.

That’s not something one sees very often just steps from the Supreme Court bench.

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Barbs and backslaps in two big cases, SCOTUSblog (Jun. 25, 2015, 12:21 PM),