Last week was momentous at the Supreme Court. On Thursday the Court upheld the legality of subsidies nationwide, as the key feature of the Affordable Care Act (ie “Obamacare”). On Friday the Court ushered in nationwide marriage equality. I am very pleased with the outcome of both cases. Let's examine each in turn.
1. King v. Burwell. This was the second attempt to invalidate the Affordable Care Act, after the first one failed in 2012. This time proponents claimed that the phrase “exchange established by the State” means subsidies are only lawfully available to the residents of individual states that have established health care exchanges. If you do not reside in such a state, tough luck as your premiums rise.
This is a preposterous position, as I asserted in April. Precision in language is one thing. Pedantic hair-splitting that is divorced of all context and logic is another.
Chief Justice John Roberts agrees. Writing masterfully in the controlling opinion, he makes several essential points: “[W]hen deciding whether the language is plain, the Court must read the words ‘in their context and with a view to their place in the overall statutory scheme.’”...”Here the statutory scheme compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”
Hear hear. In his dissent, Justice Scalia accuses the Court of making up new meanings to words while stepping out of its lane. In fact, this is what Justice Scalia is doing in this (thankfully) failed attempt to usurp the authority of the people’s elected representatives.
2. Obergefell v. Hodges. This 5-4 decision ushers in marriage equality. (King v. Burwell was 6-3). Writing for the majority, Justice Kennedy is eloquent: “The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”...”[T]he right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”...”Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”
So moved and so ordered. #lovewins
That stipulated, it is worth taking a moment to ponder Chief Justice Roberts’s dissent (which is by far the most principled of the four dissents). In King v. Burwell the Roberts prevented usurpation of the wishes of Congress. In Obergefell v. Hodges he fears that the Court is short-circuiting a democratic process that is likely to result in support for same sex marriage anyway. We must acknowledge his deference to the justice of same-sex marriage: “Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal…”
On the other hand, “[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have the power to say what the law is, not what it should be.”
The Chief Justice is making a process point, not an ideological or homophobic one. As Emily Bazelon points out, there is some merit to his claim. But in the end I disagree with the Chief Justice. Equal protection under the law is part and parcel of the Constitution. That position has undeniable appeal too.