The Growing Scandal of King v. Burwell

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

(Liptak)

Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom.

More on King v. Burwell

A thematic question: At this point, how is it still a question?

There is a bit somewhere in a book about the Universe asserting what seems nearly circular, that we know what we know is right because it is what we know. That is, of course, an insufficient paraphrase, a memory of how the point felt, but it is also true that if what we think we know is that wrong, there would be no satellite communications. Try a simpler version. If you know a football coach, test a proposition; there is only so long one can hear people say a professional athlete “sucks”. Not a good day, maybe in a larger slump, but you don’t distill in the process and elevate to that valence if you suck. One might think similar things of, say top-tier electoral politics, but no, it doesn’t work that way. It is supposed to, or so we might imagine, except Sarah Palin was nominated to run for vice-president once upon a time, and we all watched Mitt Romney’s disastrously ill-executed campaign for the presidency in two years ago.^α

Certes, such comparisons are notoriously vague, but here is the theme: At some point, we cannot maintain confidence if certain properties remain variable and unresolved; if questions of a particular nature and context remain in effect, how is the larger paradigm expected to function at a given valence?

Or perhaps we should simply start with standing. A juristic context. We considered the issue briefly, yesterday, but something about awestruck disbelief seems to have gotten the better of us.

Point being that one might wonder how standing could remain a potentially affecting question when a case reaches the Supreme Court.

Just sayin’.

However, Louise Radnofsky and Brent Kendall bring the question back to focus for The Wall Street Journal:

One of the plaintiffs in the Supreme Court case against the Affordable Care Act listed a short-term-stay motel as her address when she joined the lawsuit, potentially calling into question her basis for suing.

Rose Luck is among four plaintiffs suing the Obama administration to eliminate tax credits under the law that make health insurance cheaper for millions of Americans. They say the wording of the 2010 law allows consumers to tap the credits only in states that run their own insurance exchanges, and not their home state of Virginia, which is one of as many as 37 states that use the federal enrollment system.

And at this point it’s easy enough to make a point about how this sort of technicality shouldn’t matter; after all, the case has survived, anyway, and has achieved SCOTUS valence.

One of the Most Fascinating Political Questions of the Year

“Despite my deep respect and admiration for Ginsburg and her inspiring career, I find her approach extraordinarily reckless. For all of our sakes, here’s hoping her gamble pays off.”

―Steve Benen

And as much as we all at This Is adore Mr. Benen’s insightful analyses, we do indeed disagree on occasion. And in the matter of whether or not Justice Ginsburg should retire, a simple question asserts itself: Do we trust Justice Ginsburg?

Benen’s overview is sufficient, let there be no doubt. And, to be certain, it is fair to point out that Ginsburg’s political calculations are not without risk. Furthermore, of course we all, as such, hope the gamble pays off. But in a time so uncertain as to cloud the prognostications of conventional wisdom, it also pays well to remember that not all things are equal. On paper, sure, the analysis suggesting Ginsburg is taking too big a risk by her political calculation is at least arguable. But what of the human terms? The variables resolve with diverse values, and in that, quite frankly, it is not a matter of who does one trust, Mr. Benen or Justice Ginsburg. The question to consider is whether or not one trusts Justice Ginsburg.

If her calculation is so dangerously awry, she ought not be on the Court in the first place. Those of us who not only appreciate her presence on the Court but also recognize the magnitude of what kindness history will speak of her tenure have every reason to trust Ruth Bader Ginsburg.

In a way, it does help to point out: Remember, she’s the one throwing down. And before anyone stutters about Scalia or Alito or whoever, that is beside the point. Ginsburg recently let the lower courts know what was on the minds of the Supremes and while Justice Scalia was in Texas explaining why the perspectives of self-centered supremacist bigots from the eighteenth century should describe the twenty-first, Ginsburg explained to law students in Minnesota that the nation’s ranking court would not get involved in the growing noise and bluster over same-sex marriage unless lower courts botch it all up.