Raising the Standard at UGA since 2013.

A Loss of Words


This article first appeared in the Fall 2015 edition of THE ARCH CONSERVATIVE.

As a general rule, the Supreme Court decides to release what it considers its most significant decisions at the very end of its term, which runs from October through June. In recent years, the Court has released decisions dealing with campaign finance, voting rights, and religious liberty in the final days of June.

This year, the Supreme Court decision striking down state statutes defining marriage as between a man and woman and legalizing gay marriage nationwide was released on the final Friday of June. It received by far the most attention of the term. Although less notice was paid to the two decisions immediately preceding and following the gay marriage case, these cases will arguably have a more substantial effect on legal precedent in the years to come. An attentive political observer may recognize King v. Burwell, another case concerning Obamacare. At issue was a statute in the Affordable Care Act which stipulates that certain tax credits and financial support for purchasing health coverage are available to citizens who purchased insurance from “an exchange established by the state.”

Following the decision of 27 states to not establish their own exchanges, the Obama administration decided to set up an interstate health insurance exchange run by the federal government, which would offer insurance to the people in those states. The plaintiffs in the case charged that the federal government could not require them to purchase health insurance coverage, as required under the individual mandate of the Affordable Care Act, as the tax credits they needed to purchase the insurance were not available in their state, which didn’t set up an exchange.

The statute in question clearly employs the phrase “established by the state”, while the administration interpreted the law to include the federal government as well. Under a standard reading of the statute, it seemed that the plaintiffs had a strong argument against the administration.

Before the hearing, it seemed possible that the Supreme Court would strike down the administration’s interpretation of the statute, terminating a significant feature of Obamacare. Alas, it was not to be. Chief Justice John Roberts, writing a decision that would uphold a significant feature of Obamacare for the second time in four years, accepted the administration’s interpretation of the law. The Chief Justice, writing for a 6-3 majority, acknowledged that those challenging the administration had “strong” reasoning, and their interpretation was “the most natural reading of the pertinent statutory phrase.”

Nevertheless, he and the five affirming justices decided that the phrase “established by the state” couldn’t possibly be interpreted strictly because it would “likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

By this mechanism, the Chief Justice deliberately translated the statuory phrase “established by the state” into “established by the state or federal government.” Although the law says the former, with the help of the Supreme Court, it now means the latter.

In this way, Roberts has allowed the administration to continue pursuing the goals of the ACA while acknowledging that the law was not technically written to allow this.

The precedent that this creates is a sea of legal paradoxes. Under this logic, it is now the job of the judiciary to correct the errors that legislators make when they are writing laws. No longer is it the job of the courts to mediate disputes over interpretations of laws, supporting whichever party has the stronger argument under the letter of the law. The courts must now somehow decide between interpreting laws based on the intentions of the authors or the actual text of certain statutes should the law be written in a way that conflicts with those goals. This philosophy transforms the judiciary into the partner of the legislature, working toward the desired policy goals of laws, away from its original purpose as a separate branch of government in charge of interpreting the laws passed by Congress and enforced by the executive branch.

Another significant case, Arizona State Legislature v. Arizona Independent Redistricting Commission, received an even smaller amount of news coverage this summer. Nonetheless, it will undoubtedly set a haunting precedent going forward.

In 2000, a public referendum was put on the ballot in Arizona suggesting that the voters remove the ability of state legislatures to draw congressional districts and cede this power to an independent “redistricting commission.”

This idea presents a problem, however: The Constitution states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” As a matter of legal interpretation, this case was leaning heavily in favor of the state legislature. Again though, it was not to be.

On a 5-4 vote, the Supreme Court ruled that the Constitution does not impart legislatures with exclusive control over the drawing of congressional districts and that citizens do in fact have the power to shift this power to an independent commission by ballot initiative.

Writing for the majority, Justice Ruth Bader Ginsberg writes that “the animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.”

According to this line of reasoning, a popular referendum could strip any power assigned to the state government and assign it to some other body.

Here, the Court’s decision does not merely flout a strictly literal reading of an unambiguous clause in the Constitution.

Justice Ginsberg’s argument is a demonstrably fallacious line of legal reasoning.

Consider the fact that the 17th Amendment was required to wrest the election of senators away from state legislatures, a point that the dissenting opinion makes exceptionally clear in its blistering attack on the majority opinion.

To understand why the majority of the justices of the Supreme Court would flout the literal reading of the Constitution, context is key. To a great many liberals, many of the political woes in this country, i.e. polarization and gridlock, can be attributed to partisan redistricting, or gerrymandering. In response to this view, support for state legislatures to transfer their redistricting powers to independent commissions has been growing rapidly in recent years. It is no stretch of the imagination to conclude that Justice Ginsburg and the other four justices supporting the decision believe this as well.

Sadly, these justices seem to have allowed their personal preferences over an issue to cloud their legal judgment over a case. In what other way could the Court have interpreted “by the Legislature” to mean “by the People” with a straight face?

These two decisions raise a great number of questions about the role of the judiciary in our current system of government. Thanks to these two decisions by the Supreme Court, words no longer mean what they seem to indicate. “Established by the state” now means “established by the state and federal government” and “in each State by the Legislature” no means “in each State by the Legislature, unless the People decide something else.”

These two decisions provide a stunning demonstration of judicial activism.

The justices who affirmed these decisions refused to review a case based on law and precedent rather than personal bias. They allowed the possible outcome of the decision on the policy and their personal preferences for certain policies to affect the way they interpreted these laws.

It is possible these cases result in a better form of public policy. Perhaps the country is improved by these decisions. Perhaps not.

In the realm of the legal philosophy, though, judicial review works in a very specific way: If a court interprets a written law and the ramifications of that interpretation do not follow what the legislature wanted, then it is the legislature’s responsibility to rewrite the law to correct the flaw. The burden does not rest with the judiciary.

One of my favorite political idioms comes from John Adams, who wrote that “America is a nation of laws, not of men.” Language, not human whim, is the bedrock of the law: The particular words which comprise a prohibition give it legal authority. A word is definitive and forever; it cannot turn on its head based on the will of a majority, the thoughts of nine judges, or when it was written or read.

Men and women are malleable and naturally change their interpretations of life based on learning and experience. Laws should not be fluid like this. If law is flexible, then it cannot be applied to all citizens equally—a principle which is essential to liberty.

Lady Justice is blind for a reason. It is not just because she should not see who the plaintiffs and defendants are. It is also because she should not care what the results of administering justice through the courts would be.

In a perfect world, the positives and negatives resulting from a legal decision is the concern of legislatures, not judges. Justice in and of itself should be a judge’s only concern.

—Connor Kitchings is the Manager of THE ARCH CONSERVATIVE.