Thoughts From Reading the King v. Burwell Transcript

I took a little time to read the transcript from today's Supreme Court oral arguments in King v. Burwell.

If you want to read the transcript, you can find it here. It's always a dicey proposition to read anything into how the Justices will rule from their questions/comments at oral argument, but here are a few of my impressions:

1. Justice Ginsburg immediately jumped on the issue of standing from the get-go. After some back and forth, and with what ultimately seemed like a concession from the Government, the likelihood of kicking the case out on a lack of standing seems extremely remote.

2. Justice Kagan seemed to have gotten the better of Petitioner's counsel with her hypothetical about law-clerks and memo writing, but Alito jumped to the rescue with such a good response that even Kagan remarked of Alito "He's good."

3. The real question seems to be where Justice Kennedy is going to land. He seems to want to say that the Petitioner's argument necessarily requires the conclusion that conditioning subsidies on states setting up the exchanges is coercive, and would therefore be unconstitutional. Obviously, this would result in disruption of everyone who got a subsidy in the states where HHS set up the exchanges, and Kennedy seemed loathe to make that leap. Petitioner's counsel responded to Kennedy by observing that the government hadn't made that that argument, and Kennedy says "Sometimes we think of things the government doesn't".

4. Carrying that last point further, the real question seems to be whether Kennedy is willing to interpret the statute in a manner that avoids having to find the statute to be unconstitutional under the avoidance doctrine. I think that Kennedy wants to say it's unconstitutional, but I think he's concerned with the resulting effects of what happens if he makes that finding. Ultimately, I think he'll avoid doing so, and the Government's position will prevail.

5. The Government's counsel took a little bit of a shot at Congress when Justice Scalia pressed him on why the Congress wouldn't just amend the statute if the Court accepts the Petitioner's position. Scalia says "You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue?" and the Government's lawyer responds somewhat tongue-in-cheek with "Well...this Congress, Your Honor? I...I..." to which there's some general laughter at Congress' expense.

Ultimately, I think the Government will win this because I think the easy place for Kennedy to land is that there is a little bit of ambiguity in the statute, so you go with the interpretation that doesn't render the statute unconstitutional. That' just my guess, anyway. I would be surprised if the Court did something radical and essentially forced Congress and President Obama to fix the law.

Oral Arguments and What they Mean

I wanted to listen to the audio of the oral arguments before I commented. Having done that, I thought the news coverage of the case was extreme. Everyone from Toobin (who is a hack) to Wolf Blitzer (don’t you love his name?) to the folks all over MSNBC basically said some version of this:

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

                                                                                        (Full Article Here)

 I listened to the oral argument. Verrilli didn’t do that bad. Everyone these days is used to seeing lawyers in movies and on TV shows have these amazing closing arguments. Everyone expects you to be MatthewMcConaughey, in A Time to Kill.

I hate to kill your buzz, boys and girls, but the actual legal world isn’t like the movies. It’s kind of dry, it’s not dramatic, and it’s usually conducted in a run-down government building. Judges ask tough questions, and sometimes there isn’t a really good answer that it both profound and witty. Sometimes even the best lawyers lose their train of thought. Accordingly, everyone needs to kind of chill out about the "style-points" of the whole thing.

Also, any lawyer who does a fair amount of appellate work will tell you that oral argument doesn’t really win or lose the case. Sure, if you make the best oral argument in the history of the world (or the worst) it might influence a vote. However, the reality is that the Judges/Justices at the appellate/supreme level have already read your written briefs, thought about the question presented, had their law clerks research the issue, discussed it, and have probably formed their own opinion already.

Here’s my analogy for all you non-lawyers: An appellate case is like building a wooden fence. Your written work (the briefs), and the substantive law are the wood and the nails. You put the fence together with the wood and the nails. You try to make sure there aren’t any gaps in the fence, that each board is straight, and you nail it together tightly. Oral argument is deciding what color you’re going to paint the fence. If you accidentally spill all the paint, you still have a fence – it’s just not as pretty as you would like it to be.

Consequently, all this wailing and gnashing of teeth about how “bad” the solicitor general sounded during oral arguments is fluff and it's nonsense. However, the news media has to say something, so this is what they’ve decided to fixate on.

You don’t have to do any deep thinking about the merits of the law if your big takeaway is: That guy sounded like an idiot. But we all know that the news folks aren’t in the business of serious analysis. That would be too hard, bro.

They don’t want to talk about why the fence might have a bad foundation, the history of fence building, how the fence could be flawed, or what other kinds of fences built like this would mean for us. They just want to focus on: Wow, that’s an ugly looking fence.

Another possible angle is that all the defenders of the health-care law and the media (but I repeat myself) are looking for a potential scapegoat. If SCOTUS kills the law, the defenders can then point to Verrilli and say “Hey, the law is constitutional, we just had a moron argue it.”

In fact, if SCOTUS kills the law, I personally guarantee you that some news-person will put that theory out there. They’ll have no problem throwing him under the bus to preserve the idea that the law is valid.

The News: If you’re looking for substantive analysis – you’re looking in the wrong place.