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Continuing a discussion of the Supreme Court's term

Authority of Law by James Earle Frasier

So now for the two Big Ones.

1) The Supreme Court's third big Obamacare case came down this June.

The Court's response to the first Obamacare challenge, you will remember, the NFIB decision of 2012, upheld the health-insurance mandate against the charge that it did not come within any one of the federal government's "enumerated" powers under the constitution. The decision, in the law's favor, held that it didn't come within the meaning of "commerce among the states" but that this doesn't matter all that much because it did come within the meaning of the taxing power. This vote came down 5 to 4.

The second challenge involved religious objections to the provision of certain types of health insurance. The opponents of the law won that one at the high court, 5 to 4, carving out a religion-based exception to the scope of the employer mandate. The winning bloc of five consisted of Justices Alito, Roberts, Scalia, Kennedy, and Thomas. This left Ginsberg, Breyer, Kagan, and Sotomayor in dissent. Personally, my expectation going into June 2015 was that the same five-Justice bloc would hold together to take another swipe at the over-all scheme via the issue of statutory interpretation raised in  the third challenge, King v. Burwell. 

I was wrong. The The court voted 6 to 3 to uphold the over-all statutory scheme, even though that required a generous reading of some poorly drafted language. The winning bloc this time consisted of Justices Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Last years' dissenters plus the Chief Justice and Kennedy.

The opinion was a much more sweeping affirmation of the statutory scheme than was necessary to get to that result. The court could have used Chevron reasoning, after all - it could simply have said, "in such matters of statutory construction, we defer to the administrative expertise of the relevant executive officials." That would have left the scheme in place, but would have left it subject to being overturned if the Republicans win the next election and the partisan loyalties of the relevant administration officials change. But it didn't.

Something else the majority could have done, but didn't, was invoke federalism arguments. This would have given a conservative slant to the decision, saying "a literal construction of the disputed phrase would leave the federal government too demanding vis-a-vis the states, so our duty to the federal-state balance is to avoid such a reading." Some observers expected such reasoning, based on observations that Justice Kennedy made during oral argument.

Kennedy told the attorneys for the law's opponents during argument that if their interpretation of the law prevailed, "the states are being told either create your own exchange, or we'll send your insurance market into a death spiral." Dahlia Litwick of Slate called this the "most important moment" from the arguments. It's less important-seeming now. Kennedy didn't write for the majority, nor did he write a concurrence (as of course he could have had the federalism angle been important to him), nor did Roberts' opinion for the court give that argument more than a brief passing glance.

Why not? I'm not sure. But the bottom line is that Roberts' decision gives the administration an uncomplicated victory as to what the statute means, without dragging either federalism or administrative discretion in to it.

2) Gay Marriage and the 14th amendment

Even bigger, Obergefell v. Hodges. Justice Kennedy, writing for the majority (no concurrences, four dissents), found that prohibitions on the marriage of same sex couples violate the fourteenth amendment, apparently as a consequence of the "synergy" between the equal protection clause and the substantive reading of the due process clause.

I won't try to find something new to say about this case. I will only say that Kennedy is a bit too sparse for my taste in his discussion of doctrinal matters. For example, especially on the equal protection side of the synergy, readers will naturally want to know what is the level of scrutiny that is supposed to attach to laws that discriminate between homosexuals and heterosexuals.  Strict? intermediate? mere rationality?

I think Kennedy is trying to say that the laws in question fail even at the lower tier, they are simply irrational. So he doesn't need to inquire which level is the right one. That either indicates that the whole conceptual apparatus of tiered scrutiny has outlasted its usefulness and Justices will feel free hereafter just to ignore it, OR it is simply sloppy. I would welcome the former but suspect the reality is the latter.

The phrase that comes to mind, the phrase often used to define when strict scrutiny is called for, is "discrete and insular minority." I'm not sure how discrete homosexuals are as a group. They surely are not insular. Thus on one traditional way of looking at the problem, discrimination against them is not subject to strict scrutiny. Still, it seems that the case is strong (leaving the liberty clause aside) that such discrimination should be subject to the intermediate level, the same level that applies to discrimination against women for example. And that it should fail of such scrutiny. If the three-tiers stuff is going to survive at all, it would have been good for the court to be clear about the fact that it does survive, and the place of this particular fact pattern therein.

That concludes my summary of five decisions of this term. But there is more to be said about this term, that escapes an opinion-by-opinion review, and I will say some more about it in my next post, Thursday.


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  2. Marty Lederman observes that the dissenters in Obergefell say virtually nothing in defense of state justifications for banning gay marriage, and that is because there are no legitimate ones. The true reasons for the ban: "moral disapproval, biblical injunction, anxiety about homosexuality, and occasionally even animus--are unavailable to the states as legitimate justifications; and therefore it's understandable that those justifications--the actual grounds for state discrimination--do not even make an appearance in the Obergefell opinions."
    http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html

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