I recall once reading an interview with one of the head writers of Star Trek: The Next Generation—you know, the faux Star Trek series where the role of Captain Kirk was reimagined by the UN and the National Organization of Women. (No: This is not arguable. Just as there is only one real James Bond—Sean Connery, damnit—there is only one Star Trek. Simple rule: if it doesn’t have William Shatner, it ain’t Star Trek. Everything else is just pretending. This is settled science.) But I digress. Bashing Star Trek: TNG is my favorite form of anger management, and quite necessary today.
Anyway, the old TNG writer said that in the scriptwriting process, whenever they got to a point where something science-y needed to happen, the writers always just dropped in a placeholder in brackets that all said the same thing: “And here we’ll [tech the tech].” And then the script would be passed along to one of the sci-fi nerds on the junior writing staff who would make up something to push the plot along: “John Luke, we can give two di-lithium crystals a half-twist and generate a tachyon-particle warp field!”
Well, with the King v. Burwell opinion today, the Supreme Court has essentially told Congress that henceforth it can simply drop into every controversial piece of draft legislation the following phrase: “[good people will do goodly good things in a good way here].” Not to worry, the Supreme Court will sort it out for us! Behold the new order: Congress doesn’t just delegate to the executive branch; they’re now delegating to the Supreme Court as well. And the Court has devised its own statutory warp-field generator that can warp any text into the desired result.
Chief Justice Roberts’s opinion defers to the “context” and “intent” of Congress as rationale for re-writing the statute, and these jural filters might be defensible applications of Blackstone’s basic rules of construction, as Roberts implies by his references to Chief Justice John Marshall’s use of them in his classic early opinions, if he correctly judged the context and intent of congressional lawmaking today. (Some other time we can go through why Marshall is an ambiguous figure—something my students figure out when I go through those old cases carefully.) The context and intent of modern congressional lawmaking is precisely to avoid political responsibility through delegation. The specific “context” and “intent” of Obamacare’s state exchange language, and Jonathan Gruber made clear, was to coerce the states into doing the dirty work that feds didn’t think they could do themselves.
In rescuing the statute, Justice Roberts didn’t just re-write the law, he also re-wrote the intent of the law. (Question: will some states now abandon their exchanges and let the feds take them over? I would if I was a governor with a costly and troubled exchange up and running. Oh, and while we’re at it: anyone think Chinese or Russian hackers haven’t breached the personal data in the Obamacare exchanges? Me neither.)
Today is Thursday, or “Throwback Thursday” for Facebook users. I’m having flashbacks to 1937, or the “Revolution of 1937” as constitutional historians of all stripes call it. That’s when the Supreme Court reversed course and blessed the constitutional predations of the New Deal. And the key figure in switching sides in those cases was . . . Justice Roberts! Okay, so it was Owen Roberts—no relation to our Chief—but it’s still a little unnerving. I’m tempted to suggest the only sensible remedy: William Shatner for Chief Justice! Couldn’t be worse.
Final thought: The decision will have an ironic political effect. I know from sources in DC that congressional Republicans were divided and terrified about what they would do if the Court had struck down the Obamacare subsidies. If they continued them for the rest of this year, would they really pull them next year—an election year? Doubtful. Democrats were looking forward to the agony of Republicans, who might well have melted down over this. Republicans are therefore privately relieved at this outcome. On the other hand, Democrats lose a chance to attack Republicans for gutting Obamacare without having a replacement (more on the “ratchet effect” of this whole misadventure later), and they lose a chance to make the Supreme Court an issue in the election next year. I suspect Obama is privately a little disappointed at the outcome, too, since he relishes demagoguing these kinds of issues.
To borrow from P.G. Wodehouse: I am disgruntled, and there’s little the Supreme Court can do to gruntle me again.