• September 14, 2015
    Guest Post

    by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

    [W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

    But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

    In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

    In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

    Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

  • August 3, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. BurwellRoberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

    That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

    Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.

  • February 24, 2015
    Guest Post

    by David StraussGerald Ratner Distinguished Service Professor of Law, University of Chicago Law School. 

    *This post is part of the ACSblog King v. Burwell symposium.

    One narrative about King v. Burwell goes like this: diehard opponents of the Affordable Care Act pored over the law and found that, if you take the words of the statute at face value, the ACA will blow up. Those words might have been a mistake, but there they are, and the law is the law. The only escape (on this account) is a kind of plea for mercy: to say that the statute should be read in a way that saves it, even if the words are to the contrary. Some defenders of the ACA have drawn the lesson that a text-focused approach to statutes—the approach that is generally called “textualism” and is today associated with Justice Scalia—is a bad idea generally and that King v Burwell shows why that approach should be abandoned.

    Some of this story is right. The litigation is, in fact, the work of diehard opponents of the statute who are trying to blow it up. There is not a shred of evidence that anyone involved in passing the law thought that it contained such a self-destruct mechanism. And there are some problems with Justice Scalia’s textualism. But there is no need to get into those problems in King v. Burwell. On the contrary: This is a chance for textualists to gloat.

    That’s because the core textualist claim is that the best guide to what Congress wanted to achieve is the words of the statute, not judges’ speculations about Congress’s intentions. King v. Burwell shows that the textualists are right: This time, at least, the words of the ACA tell you all you need to know about what Congress was trying to accomplish. And what the words tell you is that people trying to blow up Obamacare are simply wrong.