NYT's Linda Greenhouse to the Supreme Court: "If you do destroy the ACA, you will have a great deal of explaining to do — to history"

Is the Supreme Court in peril? (Image from the Peril magazine "checklist" on the Galactic Central website.) And say, are American men too masculine for love?

by Ken

I've been slow getting to what Greg Sargent, in a Thursday "Morning Plum" post, "The Supreme Court is 'on the front lines of a partisan war," called "the most important read of the morning": "Linda Greenhouse’s remarkable discussion of what is really at stake with regard to the Supreme Court’s deliberations on the King v. Burwell lawsuit."

"We already know," says Greg, "that, if the Court sides with the challengers, it would gut subsidies to millions in three dozen states on the federal exchange and unleash untold disruptions in insurance markets across the country."

"And," says Greg, "Many of the arguments Greenhouse makes will be familiar to readers of this blog." And, I would add, to readers of this blog.

She notes that the challengers’ interpretation of the ACA is at odds with its whole text, structure, purpose, and legislative history. She also notes that upholding the challenge would impose onerous retroactive consequences on the states — without any clear warning. Greenhouse rightly highlights the importance of the brief from many states making a powerful version of this argument.

But Linda Greenhouse take it a step further, Greg says. She "posits that a decision with the challengers would do untold damage to the Court itself."

Greenhouse writes that, unlike in the last anti-ACA lawsuit, what’s at issue this time is not Constitutional, but statutory interpretation — and on the latter score, the Justices themselves have repeatedly discussed the need to evaluate isolated phrases in their larger statutory context. Thus, Greenhouse suggests, it’s debatable whether this case even has a “legitimate claim on the court’s attention.” She adds: “The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.”

The court itself is in peril. That's strong stuff!

Why is it significant that this case involves, not a constitutional issue, but the reading of statutory language? Because, as Greg notes above, "the Justices themselves have repeatedly discussed the need to evaluate isolated phrases in their larger statutory context.: Here's Greenhouse:

Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.”

Statutory interpretation, she says,

Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text.

And this heretofore universally understood concept of reading statutory language is precisely what the right-wingers on the Court now seem prepared to throw out, in the cause of their ideological commitment.

Greenhouse recalls for her readers her "expression of shock back in November when the court agreed to hear King v. Burwell, which she describes as "a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect." And she declares herself "still plenty disturbed by the court's action." But she says she's "disturbed as well by the defeatism that pervades the progressive community." She advises those who care about the survival of the ACA: Read the briefs. She did, and she proceeds to share what she found, which is overwhelmingly one-sided, making it look like an all but impregnable case for the Court not to pull the plug on the law, leading to the conclusion, as Greg puts it, "that only a Herculean effort to cast off their own stated principles could possibly lead conservative Justices to rule against the government":

So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.

I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.

Greg himself doesn't have a lot of confidence in the justices who are likely to cast the deciding votes, Roberts and Kennedy, explaining how "may conclude they can offer a plausible (by their own lights) legal justification for going either way, meaning that ultimately, they’ll do what they want to do." He also notes, however, that both of these justices' long-professed commitment to federalism, to requiring Congress to deal fairly with the states, may pull them back from the case being pushed through by the other conservative justices.

At the same time, is there any reason to think the conservative justices give a gosh darn about Linda Greenhouse's notion that "the court itself is in peril"?

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