A Note on Frivolous Lawsuits

Contemplation of Justice

Here’s a fun conundrum: Sometimes it seems important to note, “If you need the quick version …”, except, well, some of those times it’s probably important to look at the long version.

Such is the power of good narrative; Steve Benen, for instance, provides us with the setup:

Remember, when challenging a federal law, it’s not enough for someone to get a lawyer, go to court, and demand the law be struck down. In the American system, plaintiffs need standing – litigants have to demonstrate that a law harms them in some direct way.

And so, in the painfully absurd King v. Burwell case, anti-healthcare lawyers went out and found four people willing to sue because they’re eligible under the Affordable Care Act for insurance subsidies. They’ve been largely overlooked, but given the possibility that this case will end access to medical care for millions of families, it seems like a good time to ask, “Who are these people who want to destroy the American health care system?”

Stephanie Mencimer reports today on all four of the plaintiffs, and it’s quite a collection of folks. For example, David King of King v. Burwell notoriety, “brought up Benghazi” when asked about the anti-healthcare lawsuit. Rose Luck believes President Obama may be the “anti-Christ” and was elected by “his Muslim people.” But a Virginia woman Brenda Levy stood out as especially significant ....

Right. You know this only goes downhill. Go with Benen if you want the short form.

In the end, it’s futile; you’ll want to read Mencimer:

Levy, 64, lives outside of Richmond. She will qualify for Medicare in June, around the same time the Supreme Court is likely to issue a decision in this case. A substitute teacher with wild, frizzy gray hair and earthy clothes—she lives in a house that resembles a log cabin—Levy looks like an aging hippie. When I met her in January, she mentioned that she’d once belonged to the Sierra Club and that she used to read Mother Jones. She seemed an unusual candidate for a libertarian-tinged lawsuit designed to eviscerate Obamacare.

What was more surprising, though, was that she said she didn’t recall exactly how she had been selected as a plaintiff in the case to begin with. “I don’t know how I got on this case. I haven’t done a single thing legally. I’m gonna have to ask them how they found me,” she told me. She thought lawyers involved with the case may have contacted her at some point and she had decided to “help ’em out.”

How did they track her down? I asked if she was involved in GOP or conservative politics. Was she a tea party member who had registered her opposition to Obamacare on a petition or at a rally? Levy insisted she leads “a quiet life.” But she is politically active. A prolific writer of letters to the editor denouncing gay rights activists, Levy was also a donor to California’s anti-gay-marriage ballot amendment Proposition 8. In 2013, she helped to organize a rally outside the headquarters of the local Boy Scouts council in Richmond to protest the organization’s plan to consider allowing gay kids to join (which eventually was adopted) ....

Levy has yet to attend any of the court proceedings in King v. Burwell, because she “didn’t think the case was going anywhere.” At the time we spoke, Levy said that she had never met the lawyers handling the case in person, despite the fact that it had been pending for more than a year. But she said she planned to travel to Washington for the Supreme Court oral arguments in March: “It’s an adventure. Like going to Paris!”

When I asked her if she realized that her lawsuit could potentially wipe out health coverage for millions, she looked befuddled. “I don’t want things to be more difficult for people,” she said. “I don’t like the idea of throwing people off their health insurance.”

Levy was under the impression that if the case prevailed, someone would surely fix the insurance situation, probably at the local level. “I think [Virginia’s Democratic Gov.] Terry McAuliffe wants to expand Medicaid,” she remarked. She didn’t know that the Medicaid expansion was part of Obamacare, or that the same forces backing her lawsuit have opposed this expansion in her state. She was also unaware that there is no Plan B in the works to rescue the people who could lose their insurance if her case is successful.

And as fascinating as Mr. Benen finds Ms. Levy, it’s also true that things only go downhill from there. Mencimer continues:

The oral arguments before the 4th Circuit Court of Appeals highlighted many of the weaknesses of King, particularly with regard to the plaintiffs. Judge Andre Davis repeatedly expressed skepticism about the plaintiffs and quizzed the lead lawyer on the case, Michael Carvin, on why he hadn’t brought the suit as a class action—the traditional vehicle for public interest litigation. Davis suggested that the reason was that “nobody wants what you’re after here!” The appellate court ruled unanimously against the plaintiffs, with Davis writing in a concurring opinion that Carvin’s case turned on “a tortured, nonsensical construction of a federal statute whose manifest purpose…could not be more clear.”

Carvin, an attorney at the law firm of Jones Day, bristled when I asked him whether the difficulty in securing solid plaintiffs suggested that there are not many Americans interested in wiping out health coverage for millions of their fellow citizens. “Linda Brown was the only plaintiff in Brown v. Board of Education,” he retorted, invoking the famous Supreme Court case that led to school desegregation. “Does that suggest there weren’t a lot of people who supported her point of view?” (In fact, Linda Brown was one of 13 plaintiffs in that case, which was filed as a class action. The Supreme Court decision in Brown also included four other cases dealing with public school segregation that had been consolidated. The combined cases in Brown involved dozens of plaintiffs.)

Yes, this is really happening.


Benen, Steve. “‘I don’t like the idea of throwing people off their health insurance'”. msnbc. 9 February 2015.

Mencimer, Stephanie. “Meet the Unusual Plaintiffs Behind the Supreme Court Case That Could Destroy Obamacare”. Mother Jones. 9 February 2015.

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