Merrick Garland: Political Pawn

Richard Epstein*

Richard Epstein

Richard Epstein

The single most important phrase that changed the politics of Supreme Court nominations was Senator Edward Kennedy’s famous and shameful denunciation of “Robert Bork’s America,” with its back alley abortions, segregated lunch counters, and rogue police. From that point on, Supreme Court nominees of either party, and even potential nominees, have risked being attacked in a similar manner. The nomination process of Clarence Thomas was, of course, quite ugly—and there were major tussles during the deliberations over John Roberts and Samuel Alito (who then Senator Obama wanted to filibuster). Now, the Republican opposition is coalescing against Judge Merrick Garland, the Chief Judge of the Court of Appeals for the District of Columbia, who at age 63 is Barack Obama’s nominee to the Supreme Court.

The resistance to Garland may prove to be misguided from a political perspective, even if permissible as a constitutional matter. But the Republicans have just doubled down in their game of political chicken by announcing that they will not give Garland a hearing either before or after the election. Whether they have enough ammunition to succeed politically is a complex question.

To help cut through the morass, it is useful, I think, to separate the politics from the man. The opposition to Garland has nothing to do with Garland himself, who is a distinguished public servant and an excellent federal judge. If he were filling a seat vacated by a liberal Democrat, there would not be much fuss. But this appointment involves a shift in control on the Supreme Court. Republicans fear that even the most reasonable liberal Democrat will tip the balance of the Court away from the conservative wing. If Hillary Clinton becomes president, she will doubtless make two or three appointments to the Court, at which point the Democrats will have a complete ideological lock on the Court for at least a generation.

That shift in control will matter most on hot-button issues. One recent example is Friedrichs v. California Teachers Association.Virtually every observer of the oral argument believed that a five-four vote was certain, meaning the Court would outlaw the agency shop for public unions on First Amendment grounds. That decision is now likely to be decided four-four, so that the perfunctory Ninth Circuit decision upholding the agency shop arrangement will prevail.

The same uncertainty exists in United States v. Texas, which is about the reach of executive power in immigration cases. There is a sharp division of opinion between the left and right on that issue. It’s a similar situation for Zubik v. Burwell, where the Little Sisters of the Poor are contesting under the Religious Freedom Restoration Act (RFRA) a requirement by the Department of Health and Human Services that they facilitate insurance coverage for contraceptive services that are against their sincere and deeply held religious beliefs. In the related case of Hobby Lobby v. Burwell, a five-four majority held, over fierce opposition, that under the RFRA, a private corporation could not be required to provide health insurance policies that covered payment for contraceptive methods that violated the religious beliefs of the individuals who owned and controlled Hobby Lobby. Zubik is surely closer to the line, and there is little doubt in anyone’s mind that a future Justice Garland would vote to sustain that regulation, given his general deference to administrative regulations. Similarly, it is likely that Garland would vote to overturnCitizen’s United v. Federal Election Commissiondecided in 2010, which featured a powerful Scalia concurrence, attacking, let us not forget, the scope of the bipartisan McCain-Feingold legislation on First Amendment grounds.

 The future is sure to hold key decisions on abortion, affirmative action, campaign financing, gun rights, unions, federal power to regulate under the commerce clause, and judicial review of administrative agencies. The betting by everyone is that a Justice Garland would line up solidly beside his four liberal colleagues on this set of issues. Ideologically, he is closer to Justices Kagan and Breyer, as opposed to Justices Ginsberg and Sotomayor, but Republicans are not concerned about these fine-spun differences. They fear the constitutional reorientation that will surely arise if Garland replaces the late Justice Scalia.

But some of the attacks against Garland have veered into the realm of hyperbole. Many conservatives do not seem to realize that some of the problems of modern constitutional law are attributable to the work of Republican judges. One example of a misguided attack against Judge Garland comes from a recent Wall Street Journal op-ed by Juanita Duggan, the head of the National Federation for Independent Businesses. She announces in the piece that the NFIB is getting off the sidelines to strongly oppose Garland’s elevation to the Supreme Court. Her chief complaint against Garland is his deference to administrative authority, especially to a pro-labor National Labor Relations Board. By the same token, though, Garland’s approach on this matter is all too mainstream. Administrative deference was also championed, after all, by Scalia.

Duggan takes aim at Garland’s opinion in Rancho Viejo, LLC. v. Norton. In that case, the Department of Interior prevented Rancho Viejo from completing an extensive real estate development because its construction could compromise the habitat of the Arroyo Southwestern Toad, which lies entirely within one state. Garland upheld the Department of Interior’s position. But, Duggan argues, this is not a matter for Congress to decide. How does the Department of Interior’s action, she wonders, fall under Congress’ power to regulate commerce among the several states?

As a matter of first principle, Duggan asks the right question, as this looks to be a local matter. But as a matter of current law, Garland was surely correct, and Duggan sadly misinformed. The first hint that something is amiss is that the Secretary of Interior was a rock-ribbed Republican, Gale Norton. The second key point is that Garland’s decision relied extensively on the 1995 Supreme Court decision in United States v. Lopez, which established the broad reach of the contemporary commerce power. But, again, remember that Chief Justice Rehnquist. wrote the expansive decision that, in the course of striking down the Gun-Free School Zones Act of 1990, went out of its way to affirm a foundational constitutional decision of the New Deal, Wickard v. Filburn(1942) on which Rancho Viejo rests. Even the conservative Douglas Ginsburg concurred in Garland opinions, while doubting that under Lopez Congress could reach the lone hiker as well as the large commercial developer. But if that is the bone of contention, the war to constrain Congressional power has already been lost, whether or not Lopez is overruled.

At this point, the entire picture is muddier than one might hope given that Republican legislators and Republican justices have contributed much to the parlous state of American constitutional law. But, in general, the Democratic justices have been consistently more off base, which is why Republicans have been so intransigent about Garland. Suppose the Republicans hold firm, and the Democrats win the presidency. At this point, the Republicans may bite their lips and vote to confirm Judge Garland, at which point they have lost nothing but time. They take the risk that President Obama would pull Garland out and nominate someone further to the left. But given his oft-repeated claim that he chose the most qualified candidate, it is not likely that President Obama would make that reversal.

The real loss to the Republicans lies elsewhere: that the public will see the Senate’s refusal to hold hearings as mean-spirited political opportunism or, worse, as an abnegation of their alleged constitutional duty to consider any nominee that the President puts forward.

On the political issue, the Republican renewed refusal to hold a hearing could cost them dearly at the polls. Granting a hearing, allowing Garland to speak, and then voting him down could easily be damaging if he makes a favorable public impression, which seems likely. Worse still, as George Will asks, is it really part of the game plan of any sane Republican to preserve the right to designate a Supreme Court nominee to the erratic Donald Trump or the liberal Hillary Clinton? The Republicans take a very substantial risk that hanging tough on the Garland nomination could cost them both the Presidency and control of the Senate, even if by some miracle they are able to deny the clueless Donald Trump the presidential nomination.

Politics aside, it is, however, quite another story for the Democrats to accuse the Republicans of breaching their constitutional duty. The applicable provision of the Constitution reads:

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . .

This provision sets out no distinctive procedure for the confirmation of Supreme Court judges. The word “shall” imposes a duty on the President to nominate, but there is no parallel duty on the Senate. Historically, the Senate has routinely refused to consider nominees for all sorts of high offices. Indeed, early on the Democrats routinely refused to give hearings to qualified Republican nominees for the narrowest of political reasons.

There can be an endless debate as to how the Senate ought to behave, but one of the tragic legacies of the Bork confirmation hearings is a wall of distrust has killed all forms of civility between the parties. The Republicans know that if they cave today, the Democrats will, if it suits them, not reciprocate tomorrow. Unilateral disarmament on confirmation hearings is not an appealing option for the Republicans. Nor indeed is any other alternative. The stakes in this latest partisan tussle are high, and the one clear loser is the public at large as our public institutions continue to deteriorate. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Scalia Maligned

Richard Epstein*

Richard Epstein

Richard Epstein

The death of Antonin Scalia has set up a nasty battle over who shall occupy his vacant seat on the Supreme Court. The battle does not just involve the endless political skirmishes now taking place between the White House and the Senate. It also extends to the larger philosophical debate over the constitutional theory of originalism, with which Justice Scalia was so closely associated. Few of the attacks on originalism and Scalia have been as tasteless and ignorant as “Looking Back,” the broadside that the journalist Jeffrey Toobin recently published in The New Yorker.

It is evident that Toobin is out for blood from his opening salvo: “Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.” This gratuitous slur on Scalia’s integrity is odd. One of Scalia’s most prophetic warnings was that the defenders of the “living Constitution” seek to remove key issues, such as gay marriage, from the ordinary political process, and in so doing necessarily politicize the Court. In Scalia’s view, once that happens, people have to be ever more concerned about the political inclinations of the justices, because fidelity to text will not anchor them to positions that are contrary to their own philosophical predilections. The point is one that classical liberals like myself have to take seriously. For example, no matter how much we think that protective tariffs are a source of economic stagnation, it is beyond dispute that the founders gave Congress the power to regulate foreign commerce in order to allow it to erect tariff walls around the United States.

Living constitutionalists of all stripes always think that they are clever enough to defeat the central tenet of originalism—namely, that in dealing with the text of the Constitution, its proper interpretation depends on the public meaning of terms at the time of their adoption. Toobin grotesquely vulgarizes originalism as “a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century.” Wrong on two counts. First, conceptually, Scalia did not think that the private thoughts of individual framers counted for much, but placed his weight on careful studies of the shared public meaning of key terms. Second, no originalist offers a normative defense of slavery. But it is surely necessary to recognize that many of the great political leaders of the time—George Washington, Thomas Jefferson, and James Madison for starters—were slave owners who separated themselves from that dreadful institution on other issues. Should we regard the entire corpus of American writings in that period as rubbish because of slavery?

We know that Toobin could not take that dubious position because he proudly points to the great Chief Justice John Marshall as one who “always looked forward” as opposed to a backward-looking justice like Scalia. Toobin falsely argues that Marshall “read the new Constitution to allow for a vibrant and progressive federal government.”

So what is wrong with this picture? John Marshall was a slave owner for the entire time that he sat on the Supreme Court. Yet Toobin is not bothered: Marshall does not fall into the camp of “bewigged worthies,” or those obsolete persons who thought that they could divine the intentions of the Framers. The point is deeply ironic because some of Marshall’s supposed “progressive decisions” were often drafted with one eye on the need to preserve slavery in the antebellum period. The most notable case of this sort was Gibbons v. Ogden, decided in 1824, in which Marshall took issue with the great Chancellor Kent on whether New York could prohibit the movement of steam ships in New York Harbor while on an interstate journey from Elizabethtown, New Jersey. New York’s objective was to protect Aaron Ogden’s long-term exclusive license to navigate New York waters using steam power granted by the New York state legislature, which Ogden had taken by assignment from Robert Fulton.

In dealing with this issue, Marshall gave what was for the time a bold reading of the Commerce Clause, but one that was consistent with its language, by allowing that navigation into the interior of a state was part of the Congressional mandate. But by the same token, he knew that any broader reading of the commerce power could confer on Congress the power to regulate or abolish slavery within the several states, in clear violation of the basic (and regrettable) political accommodation of 1787. Hence he held that the “purely interior commerce” within any state was beyond the power of Congress to regulate. It went without saying, therefore, that Congress could not regulate manufacture, agriculture, and mining within the states—which was something that the anti-slave forces in the North well understood. There may have been ambiguity in the Constitution over the exact scope of an interstate journey, or, indeed, over the question of whether the shipment of passengers, as well as goods, fell within the scope of the commerce power.

Yet it is a tribute to originalism that before the major progressive revolution of 1937, no one thought that the commerce power extended to the various activities that took place within the state. Disputes always arise about the accepted public meaning of any particular term in the Constitution, with hard cases on both sides of the line. But the clear cases dominate. In the pre-1937 period, for example, it was widely understood that the fledgling Food and Drug Administration could regulate the manufacture of new drugs in the territories, but not within the states, and that Congress could not control the use of intoxicating liquor within the states, even though it could limit its regulation across state lines.

It is just absurd to paint Chief Justice Marshall as “a progressive,” as if he would have ever countenanced decisions like Wickard v. Filburn, which in 1942 solemnly declared that feeding wheat to one’s own cows was an action that constituted interstate commerce. Nor does it make the slightest sense for Toobin to claim that Louis Brandeis was a great justice because he understood “the need for the government to regulate an industrializing problem.” The classical liberal justices who pioneered the sophisticated law of rate regulation in the late nineteenth century before Brandeis joined the court understood that point as well. The clear question is what form of regulation is appropriate, and the unforgivable sin of the progressives, Brandeis sometimes included, is that they succumbed to thinking that sensible regulation allowed the government to fortify government monopolies in business, labor, and agriculture, even though state-created monopolies are antithetical to the purposes of a free society. A more inaccurate account of constitutional history than Toobin’s is hard to imagine.

As against the mushy modern rules of constitutional interpretation, the great virtue of originalism is that it finds limits in the text beyond which the most adventurous court should never go. But it hardly follows that every decision that Justice Scalia penned was justified on originalist grounds, or that getting textual meaning right is the only challenge that one faces in constitutional interpretation.

In chiding Justice Scalia, Toobin takes potshots at one of the most famous of Scalia’s originalist opinions, Heller v. District of Columbiain which he gives an originalist interpretation of the Second Amendment that allows individuals to keep and bear arms in the District of Columbia, subject to reasonable police power regulations. The text of that Amendment reads: “A well regulated militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In my view, Toobin wins the small battle that Heller is wrongly decided, but he only wins on a close originalist reading, which is what Justice John Paul Stevens supplied in his powerful dissent. One of the first rules of constitutional interpretation is never to excise language from a text as if it were mere surplus. Always look first for an intelligible reading. Scalia was wrong to read out the initial clause dealing with the well regulated militia because it tied into the explicit grant of divided authority, both federal and state, over the militia found in Article I, Sections 15–17 of the Constitution. The key point was that the federal government could not regulate any use of arms inside the state to preserve its autonomy. But that objection did not apply to the District of Columbia, which has no militia at all, so that the Second Amendment does not apply. Stevens made the right structural argument; Scalia, I believe, did not. But there is nothing about living constitutions and changed circumstances that helps determine the correct result. The chief flaw in alternative theories to originalism is that they often provide no coherent methodology for systematic interpretation of the Constitution.

Indeed, this last point can be made more generally. The insistence that words be given their original public meaning at the time of the founding is, in one sense, less restrictive than might appear to be the case, for many terms like “commerce” or “private property” hold their meanings for long periods of time across different societies. Moreover, the originalist project can only prove viable if it recognizes that any system of interpretation has to deal with the words and phrases that are not in the Constitution as well as those that are. The point here is not new, but goes back as far as Roman times, when general propositions, like “it is wrong to kill or to take the private property of others,” are understood to create only a prima facie case of liability, subject to defenses that are nowhere written in the text.

To persons unpracticed in the art of interpretation, it is too easy to assume that these unwritten exceptions into the doctrine open up the floodgates to endless discretion. But that point is wrong. The terms that are read into contracts, statutes, and constitutions are not ad hoc, but the standard provisions that are always raised in response to an initial command. Yes, thou shalt not kill, but one may kill in self-defense, or in defense of a third party. Yes, one cannot take private property without just compensation, but both a private party and the state are entitled to disarm an assailant or shut down a nuisance. Out of such examples, a consistent account of the police power is developed—and this interpretative approach was one of the central tropes of constitutional law long before progressive thinkers worked their mischief with the constitutional text.

That is just the point. It is wrong to think that originalists have to be inattentive to structure, or must ignore the delicate task of implication. They can’t and don’t. But what the modern progressives have never answered is Scalia’s challenge to their own legitimacy: the modern approaches allow any justice to impose his or her policy preferences on the rest of society. Language is more stubborn than that. There is no way to torture the term commerce to mean manufacture, either in 1787 or today.

In his most famous essay on originalism, “Originalism, The Lesser Evil,” Scalia strikes just the right note by recognizing that even the best theory of constitutional interpretation will run into odd turns and blind alleys. No system of interpretation can rid texts of their internal errors. But it really pays to try to get it right, which is what progressives, in their desperate urge to regulate the economy, ignored. Yet, as I wrote just last week, it is no accident that the highest rate of growth in the United States took place before progressive doctrines were used to overturn the original Constitution. Every day, we all have to live with the consequences of their mistaken vision.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Antonin Scalia, A Most Memorable Friend

Richard Epstein*

Richard Epstein

Richard Epstein

The sudden death of Justice Antonin Scalia has elicited many tributes about his achievements. It has also sparked extensive reviews of his judicial body of work—and raised some questions about how filling his spot will affect the 2016 presidential election and the future direction of the Supreme Court. Like many others, I shall have more to say about these weighty issues going forward. But for now, I’d like to write about some of my personal interactions with Justice Scalia prior to his appointment to the Court in 1986.

Scalia graduated in the exceptional Harvard Law School class of 1960 along with the late David Currie, for many years my colleague at University of Chicago Law School. Currie helped arrange for Scalia to interview for a potential faculty position at the University of Chicago in early 1977. By that point, the election of Jimmy Carter as President had ended Scalia’s term as head of the Department of Justice’s Office of Legal Counsel, to which Gerald Ford had appointed him in August 1974.

When Scalia appeared for his Chicago job talk, he cut a large figure. The topic of the session was executive privilege vis-à-vis the Congress, an issue on which Scalia had sparred with Congress repeatedly as head of OLC. For Scalia, there was no middle ground on this question. He was a passionate and articulate defender of executive privilege, and noted, correctly in my view, that this was an issue that was not defined by party, but by role. Repeatedly, he stressed that every president of both parties had taken this view, which he thought that the constitutional system of separation of powers required.

Needless to say, he got the job, after which he made his views on that subject, and indeed every other, clear around the law school. Most striking of all, he disdained the hedges, doubts, and qualifications that are the common fare of academic debates. His most powerful article written while a member of the University of Chicago Law School faculty was the lengthy “Vermont Yankee: The APA, The D.C. Circuit, and the Supreme Court.” In it he chastised the Circuit Court of the District of Columbia for flouting both the specific commands of the Administrative Procedure Act, and a long list of Supreme Court precedents, thereby winning the adulation of large segments of the professoriate. His own administrative law decisions, including Whitman v. American Trucking Associations (2001), flow from his by-the-book attitude: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

It was clear, moreover, as the 1980 presidential campaign rolled into high gear, that Scalia thought of his academic career only as a way station along the path to a political appointment or judicial nomination. During the fall of 1980, Scalia came into my office to announce that it was time for conservatives like us to get off the sidelines and stand four-square behind Ronald Reagan, which he surely did. He did not become Solicitor General as he had hoped. But he eventually received an offer to sit on the Seventh Circuit Court of Appeals, which he turned down. Shortly thereafter, he was offered a position on the Court of Appeals for the District of Columbia, which gave him what he wanted: a direct line into the vast reservoir of administrative law cases that were concentrated in Washington and proximity to the Reagan White House, which would have the opportunity to nominate at least one Supreme Court justice.

While Scalia was on the D.C. Circuit, Policy Review published the cover story, “Beyond the Burger Court: Four Supreme Court Candidates Who Could Lead a Judicial Counterrevolution” in the spring of 1984. That list included Scalia, Robert Bork, William Ball, a staunch defender of religious liberty, and myself.

At the time, there was more than one counterrevolution in conservative jurisprudence afoot. On the one hand, all of us were unhappy with much of the then-current Supreme Court jurisprudence. On the other hand, we had radically different views about what to do about it. Scalia and Bork rightly opposed the freewheeling attitudes of the Warren Court. Many of these slipped over into the Burger Court after 1969, whose agenda in its early years was every bit as interventionist as that of the Warren Court. In 1970, for example, the Supreme Court had decided Goldberg v. Kelly, which for the first time imposed, mistakenly in my view, extensive procedural due process protections before terminating welfare privileges. Then, in 1973, the court unwisely abolished criminal statutes prohibiting abortions in the United States in Roe v. Wade.

Scalia, Bork, and I regarded these decisions as incorrect. But my reasoning was quite different from theirs. For Bork and Scalia, the watchword was judicial restraint. They believed that the Court should not embroil itself in political disputes unless there was a powerful and explicit textual warrant that supported an intervention. The most villainous Supreme Court decision of all, they believed, was Lochner v. New York (1905), which struck down a maximum hour law of ten hours per day and 60 hours per week. They saw it as representing the usurpation of power by an unwise court that had constituted itself as a “super legislature” that had the powers of both Congress and the states.

I, meanwhile, have never thought that the Constitution explicitly mandates judicial restraint. Rather, the document contains a set of terse but broad procedural and substantive guarantees that should be given their ordinary meaning as of the time, subject to the usual rules of constitutional interpretation on such implied matters as the police power, dealing with the power of the state to regulate for the health, safety, general welfare, and morals of the community. That approach yields the same negative judgments of Goldberg and Roe that Scalia had long championed. But it requires, as David Bernstein has clearly shown, a very different view on Lochner, where New York’s effort to suppress bakery competition does not fall within the ambit of any acceptable police power justifications.

The difference between my views and Scalia became visible at a debate that took place at a conference run by the Cato Institute on economic liberty in 1984. Scalia was the keynote speaker at that event, and I was listed as the first speaker on the next panel. Having no prepared remarks, I took the occasion to offer my own impromptu refutation of Scalia’s view that any embrace of economic liberties in jurisprudence was the equivalent of jumping from the frying pan into the fire. Both Scalia and I published our views thereafter in the January 1985 issue of Regulation Magazine, his under the title of “On the Merits of the Frying Pan,” and mine under the title of “The Active Virtues,” a conscious play on the “passive virtues” that had been defended in 1960 byAlexander Bickel in his Supreme Court Foreword to the Harvard Law Review.

Ultimately, the difference between us concerned the error rate of judicial interventions. Scalia well knew that there were legislative mistakes on the books, but feared that the courts would only make matters worse by intervening. I took the position that intervention was not only possible but desirable on constitutional grounds, so long as the Court did not stray beyond its textual mandate, which contained the broad takings clause—“nor shall private property be taken for public use, without just compensation.” Owing to the lax level of interpretation that had sanctioned the major innovations of the New Deal, the entire statute book was open for attack, so much so that my book Takings: Private Property and the Power of Eminent Domain advanced the bold argument that the entire meddlesome corpus of New Deal legislation was unconstitutional because of its interference with private property relations. That conclusion could not have been more at odds with Scalia’s jurisprudence, which did not give a central place to the protection of competition or my wholesale attack on legal monopolies. Indeed, at one event at Chicago, he described my views as “bizarre,” which to many people they are.

Ironically, however, my views did attract the attention of then–Attorney General Edward Meese, who was curious about how they applied to the scope of federal power under the Commerce Clause. He invited me to speak on these issues at a conference he set up at the Department of Justice.  The issue had long vexed me. In examining the sources, I became more convinced than ever that the Supreme Court’s decisions in NLRB v. Jones & Laughlin (dealing with labor) and Wickard v. Filburn (dealing with agriculture) expanded the commerce power beyond its earlier limitations to cross-border transactions, and were borne of the same desire to legitimate the cartelization of commerce of the New Deal state.

At the luncheon following the DOJ talk, I sat at a table with Ed Meese, Robert Bork, and Antonin Scalia. The conversation quickly turned to the judicial role in commerce power cases, and elsewhere in the Constitution. Scalia took a strong line in favor of judicial restraint, which thus led to his acceptance of the 1937 settlement on the scope of the commerce power. Bork, as was his wont, pushed hard and wondered whether the difficulties with political faction required a more aggressive stance to curb federal power. Just as the discussion got more intense, an aide came up to Meese and in a stage whisper announced that the President urgently wanted him to go to the White House. Meese promptly left the table, and Scalia’s nomination to the Supreme Court was announced shortly thereafter. Who knows what tipped the balance between the only two leading contenders for the first nomination, or just what would have happened if both Scalia and Bork, who was later “borked,” had been on the Supreme Court together. But history often turns on strange coincidences.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.


The Supreme Court decided, in a 6-3 decision by Chief Justice Roberts, that federal subsidies are available on exchanges set up by the federal government, despite potentially conflicting statutory language. The Chief Justice's decision was joined by Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor. 

The Chief Justice's majority opinion noted: "Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Later, the Chief Justice added:

After telling each State to establish an Exchange, Section 18031 provides that all Exchanges “shall make available qualified health plans to qualified individuals.” 42 U. S. C. §18031(d)(2)(A). Section 18032 then defines the term “qualified individual” in part as an individual who “resides in the State that established the Exchange.” §18032(f)(1)(A). And that’s a problem: If we give the phrase “the State that established the Exchange” its most natural meaning, there would be no “qualified individuals” on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange. Cite as: 576 U. S. ____ (2015) 11 Opinion of the Court. As we just mentioned, the Act requires all Exchanges to “make available qualified health plans to qualified individuals”—something an Exchange could not do if there were no such individuals. §18031(d)(2)(A). And the Act tells the Exchange, in deciding which health plans to offer, to consider “the interests of qualified individuals . . . in the State or States in which such Exchange operates”—again, something the Exchange could not do if qualified individuals did not exist. §18031(e)(1)(B). This problem arises repeatedly throughout the Act. See, e.g., §18031(b)(2) (allowing a State to create “one Exchange . . . for providing . . . services to both qualified individuals and qualified small employers,” rather than creating separate Exchanges for those two groups).1 These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context.

The Chief Justice's opinion concluded that, "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt."

Justice Scalia's dissent, joined by Justices Thomas and Alito, was blistering. The second most senior Justice wrote: 

"Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved."

In perhaps the most memorable line, he expressed frustration as he wrote "Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an 'Exchange established by the State.' This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare." 

The decision marks the second decision in three years to uphold the law from a potentially fatal attack. In 2012, the Supreme Court ruled in NFIB v. Sebelius that the individual mandate was constitutional not under the Commerce Clause of the Constitution, but rather as a tax.