But will they read the briefs?
Linda Greenhouse has been covering the Supreme Court for The New York Times
since 1978, first as a reporter and now as an op-ed columnist who also happens to be
a Senior Research Scholar in Law, the Knight Distinguished Journalist in Residence, and Joseph Goldstein Lecturer in Law at Yale Law School. Linda Greenhouse knows her Supreme Court, and what she sees now on the court deeply disturbs her
. The court's decision to take on the legally dubious King v. Burwell
case, she writes, positions the court on "the front lines of a partisan war," and puts "not only the Affordable Care Act, but the court itself" in peril.
Greenhouse contrasts this case with the previous challenge the court took up to Obamacare, pointing out that this time what's in question isn't the constitutionality of the law, but its statutory interpretation—what did Congress intend and did the government interpret and implement the statute correctly.
It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasn't received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, it's neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)
She goes on to note that the whole text, structure, purpose, and legislative history of the law clearly negates the arguments made in the challenge to the case. Then she details what's in the many briefs filed by supporters of the law, including the government's, to show that the conservative Supreme Court justices themselves are on record again and again subscribing "to the notion that statutory language has to be understood in context." Understood in the whole context of the statute, there just isn't a way a principled justice could reverse himself on this one. There's the rub, however.
Greenhouse urges progressives who are pessimistic about the potential outcome in the case to read the briefs, as she has. Reading them, she says, has given her hope for the first time that the government could prevail here. But her hope seems to be slim, or she wouldn't write this:
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.
Unspoken is the concern Greenhouse clearly has that history matters much less to the five conservatives on the court than politics. Or at least to four of the five. Read this as another appeal to Chief Justice John Roberts to consider this case at least as closely as he did the original challenge. Does he want to be considered by history as a blind partisan or as a principled jurist?