Constitutional Culture, Partisan Politics, and the Failed Campaign to Topple the Affordable Care Act

Nicholas Bagley Professor of Law, University of Michigan Law School

Nicholas Bagley[*]

The U.S. Supreme Court’s 7–2 vote rejecting the latest effort to undo the Affordable Care Act (ACA) was so lopsided that it’s tempting to think that the case’s outcome was foreordained, even inevitable. Of course the plaintiffs did not have standing to challenge a supposedly coercive but completely unenforceable requirement to purchase insurance. Of course Congress did not transform the individual mandate into a command when it eliminated the penalty for going without insurance. Of course a zero-dollar mandate was not essential to the operation of the entire ACA.

The case that became California v. Texas was hopeless from the start, the story goes, its legal claims too tortured to be accepted even by an extremely conservative Supreme Court.[2] Overwrought fears of the ACA’s elimination never had any basis in a hard-headed assessment of legal risk. Rather, they were opportunistically stoked by Democrats who hoped the threat of the ACA’s elimination would drive voters to the polls in 2020. Seen this way, the case’s outcome flatters the professional sensibilities of elite lawyers, Republican and Democrat alike, nearly all of whom scorned the lawsuit and insisted that the rule of law would prevail over partisanship. Bad arguments usually lose, and the plaintiffs’ arguments were very bad. That’s really all there is to say about the case.

There’s a big element of truth to the story: The plaintiffs’ arguments were, in fact, very bad. But the tidy narrative obscures something important about the complex interplay between partisan politics and constitutional adjudication. The outcome at the Supreme Court may have been foreordained, but not only—not even primarily—because the plaintiffs made bad arguments. To the contrary, the arguments were plausible enough to give the justices space to rule in the plaintiffs’ favor if that is what they had wished to do. Indeed, they were persuasive enough to convince a solid majority of the Republican-appointed jurists who heard the case, including two on the Supreme Court.

The root cause of the case’s failure runs deeper. In any constitutional culture, what counts as a reasonable argument depends on what other people think is reasonable. And people’s views about the merits of legal arguments are malleable. When the first cases challenging the individual mandate were filed back in 2010, the plaintiffs’ constitutional objections were initially derided as frivolous. Over time, however, sustained and coordinated efforts on the part of Republican officials, right-wing press outlets, and elite lawyers forged a new consensus among conservatives: Not only were the arguments plausible, they were correct. And so a conservative Supreme Court came within one vote of eliminating the most significant piece of social legislation in fifty years.

The contrast with California v. Texas could not be more striking. Outside the Trump administration, which refused to defend the law and sided with the plaintiffs, most Republican officials tried to distance themselves from the case. Fresh off the collapse of their effort to repeal and replace the ACA, they feared that the public would blame them if the ACA was invalidated—and tens of millions of people lost coverage—with no viable replacement on the table. For skittish Republicans, the law was too entrenched to tolerate the political risk of its abrupt termination. The lack of support from the Republican establishment is what foreordained the outcome here. Because the work hadn’t been done to make the plaintiffs’ arguments seem reasonable, the Supreme Court would have looked both eccentric and nakedly partisan had it backed them. No wonder the justices balked.

As I aim to show below, however, the case might well have come out differently if Republicans had made a different political calculation. If I’m right about that, California v. Texas offers a sobering lesson of what to expect when the Supreme Court next encounters a constitutional challenge to controversial progressive legislation. As with NFIB v. Sebelius, Republicans are likely to do everything they can to make whatever constitutional objections are most apt for the occasion seem reasonable to conservative jurists. That’s not an indictment of Republicans: Democrats would do the same if the roles were reversed. But with a 6–3 majority on the Supreme Court, Republicans have a much better chance of seeing their arguments adopted as law.

In California v. Texas, the plaintiffs lost because Republicans did not really wish to win. Republicans are unlikely to be as ambivalent about future lawsuits. Neither is the Supreme Court.

I. Standing

The twenty red-state attorneys general who united to bring the lawsuit recognized early on that Article III standing could pose a problem. Their legal claims were premised on Congress’s elimination of the tax penalty for going without insurance. Without a tax penalty, they argued, the ACA’s instruction that people “shall” get insurance could no longer be construed, as the Supreme Court had construed it in NFIB v. Sebelius, as affording people “a lawful choice” between securing insurance and paying a tax.[3] “Shall” had to be read as imposing the kind of coercive command that the five conservative justices in NFIB had declared to be beyond Congress’s power to impose.

The argument was clever, but it gave rise to two difficulties connected to standing. How could an unenforceable mandate ever cause the kind of injury that might serve as the foundation for Article III standing? And how could the states be harmed by a part of a law that applied only to individuals, not to states?

The plaintiffs responded in two ways. First, the red states amended their complaint to add new plaintiffs—two self-employed Texas consultants, John Nantz and Neill Hurley. The consultants swore in declarations that they felt “obligated” to buy insurance because they “believe that following the law is the right thing to do.” Extrapolating from the consultants’ arguments, the states claimed that they would suffer a pocketbook injury when people who felt similarly obligated secured state-financed insurance. Second, the red states argued that they were harmed by other ACA provisions that were inseverable from the mandate, like a requirement that the state provide comprehensive coverage to state employees or pay a penalty.

The lower courts bought the plaintiffs’ first argument. As they saw it, the objection that a zero-dollar mandate did not compel anyone to do anything—that it was all in the consultants’ heads—“conflates the merits of the case with the threshold inquiry of standing,” which requires courts to assume that the plaintiffs will prevail on their legal claims.[4] Indulging that assumption, both the district court and the U.S. Court of Appeals for the Fifth Circuit held that the Texas consultants had standing to sue.

This was not a strong argument. Even stipulating that the law imposed a technical obligation on the two consultants to buy insurance, being subject to an unenforceable legal command does not cause the kind of injury sufficient to ground standing. As I pointed out at the time, the Supreme Court has held that “a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”[5] It’s not enough that you feel compelled; you must actually be compelled.

That’s exactly what the majority concluded in California v. Texas. Because the mandate “has no means of enforcement,” Justice Stephen Breyer wrote, the consultants could not show “that any kind of Government action or conduct has caused or will cause” them any injury.[6] No harm, no foul. For the same reason, the states were wrong to assert that the “shall” language would cause them injury because it would induce more people to enroll in Medicaid or other state-financed forms of insurance. “A penalty might have led some inertia-bound individuals to enroll,” Justice Breyer acknowledged. “But without a penalty, what incentive could the provision provide?”[7]

All of this is exactly right. Notice, though, that the case law on which Justice Breyer relied could easily have been distinguished away. Prior cases involving the absence of a realistic threat of enforcement tended to involve laws that, by dint of time and changing circumstances, had been rendered dead letter. The 1961 case of Poe v. Ullman, for example, involved a challenge to a Massachusetts law prohibiting the use of birth control. Though technically still on the books, the law hadn’t been enforced for seventy-five years and birth control was “commonly and notoriously” sold in the state.[8] “This Court,” the plurality declared, “cannot be umpire to debates concerning harmless, empty shadows.”[9] Arguably, the ACA’s “shall” language hadn’t been subject to the same kind of “undeviating policy of nullification.” On the plaintiffs’ theory of the case, Congress really wanted the “shall” language to coerce—and, according to the Texas consultants, the language actually had that effect. It wasn’t a harmless, empty shadow at all. Or at least a sufficiently motivated jurist could have so concluded.

The red states’ second claim to support their standing—that the ACA as a whole caused them injury—was both more ambitious and more difficult to dismiss. Even if the mandate caused them no direct harm, the states argued that it was an indispensable part of the broader statute, which undeniably burdened them in various ways. Because the mandate could not be severed from the rest of the law, the proper remedy for any constitutional defect in the mandate was the invalidation of the entire ACA. If the plaintiffs were right about that, a ruling in their favor would absolutely redress their injuries.

The argument presents a puzzle. In evaluating a plaintiff’s standing, a court is supposed to assume that the plaintiff will prevail on her underlying legal claim. Does that rule apply to a plaintiff’s severability argument? If so, a savvy plaintiff could challenge any law that harmed her by identifying a legal defect in some far-distant provision that did not even apply to her—and then allege that the provision was indispensable to the scheme that Congress created.

That kind of blunderbuss approach to standing seems inappropriate, as I argued when the lawsuit was filed.[10][S]tanding is not dispensed in gross,” the Supreme Court has said, and “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.”[11] That principle wouldn’t count for much if a plaintiff could manufacture standing by making outlandish remedial claims. Indeed, allowing what Justice Clarence Thomas called “standing-through-inseverability” would seem to overstep the limits of Article III, which vests the judicial power—and not the power to weigh in on any question of public importance—in the federal courts.[12] That may explain why, on at least two occasions, the Court has rejected severability arguments in the course of evaluating a plaintiff’s standing.[13]

In California v. Texas, however, the seven-justice majority “decline[d] to consider” the argument, reasoning that it was “not directly argued by the plaintiffs in the courts below.”[14] That’s wrong: The states made the argument explicitly. They told the Fifth Circuit that “[t]he ACA’s inseverable provisions deepen [their] pocketbook injury,” citing a litany of ACA provisions requiring them to shoulder regulatory burdens,[15] and repeated that argument in their brief to the Supreme Court.[16] The argument was not presented as crisply as it could have been, and the lower courts did not pass on it, which may explain the justices’ reluctance to consider it. But the Court could have addressed the argument had it wanted to.

Justice Samuel Alito wanted to. His dissent, which Justice Neil Gorsuch joined, turned on an examination of prior cases in which the Court seemed to implicitly accept claims premised on a standing-through-inseverability theory. It’s an awkward approach because the Supreme Court has cautioned that “drive-by jurisdictional holdings” have “no precedential effect.”[17] But Justice Alito had a point: Several of the Court’s prior holdings arguably support some version of standing-through-inseverability.[18] My own view is that Justice Alito reads too much into those cases,[19] but his analysis is not outlandish.

The legal resources were thus available to the Supreme Court to hold that the plaintiffs had standing. That’s not a surprise: Standing doctrine is notoriously malleable. But the doctrine’s very malleability explains why it would be a mistake to assume that doctrine, by itself, drove the outcome. Standing was a ready tool to end a case that the justices wished to end for independent reasons.

II. The Merits

One of those reasons may have been that the plaintiffs’ legal claims were weak to the point of frivolousness. If so, a dismissal for want of standing offered an appealing way to get rid of a hot-button political case that wasn’t going anywhere.

There’s something to this. The plaintiffs argued that Congress, when it wiped out the tax penalty for going without coverage, didn’t mean to give people greater freedom to choose whether to buy insurance. Instead, they claimed that Congress meant to keep the mandate and make it more coercive, even though Congress knew, after NFIB v. Sebelius, that a coercive mandate would be unconstitutional. More audaciously still, the plaintiffs argued that the constitutional defect rendered the entire ACA invalid on the theory that, had Congress known about the unconstitutionality of its zero-dollar mandate, it would have preferred to eliminate the entire law than to omit the mandate. This despite the fact that congressional Republicans spent most of 2017 trying—and failing—to repeal the law.

These are not good arguments, to put it mildly. And so there’s a temptation to think that the outcome here was foreordained because the plaintiffs’ claims didn’t align closely enough with accepted legal principles, especially principles that appeal to conservative jurists. Jonathan Adler makes this point explicitly. Both NFIB v. Sebelius and King v. Burwell, he argues, “were grounded in foundational aspects of conservative legal jurisprudence (the notion of limited federal power and textualist statutory interpretation, respectively).” This latest case, in contrast, “is a too-clever attempt at legal jujitsu that requires discarding traditional conservative approaches to standing, statutory interpretation and severability.”[20]

But Adler’s characterization of the plaintiffs’ arguments (“legal jujitsu”) overlooks the extent to which they are continuous with an astringent, decontextualized strain of textualism that has taken root in the federal courts. Without doing violence to established modes of interpretation, the Supreme Court could have drawn on this strain of textualism to rule in the plaintiffs’ favor.

Textualism rests on the unimpeachable insight that close attention to statutory text is the best way to discern a law’s meaning. As sophisticated textualists understand, however, reading the text doesn’t mean that interpreters ignore what Congress meant that text to accomplish. As Caleb Nelson (himself a textualist) has explained, “judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”[21] Why does Congress’s subjective intent matter? Because language is an effort to communicate something to someone else. To understand what a speaker means, a listener must ask, “What did the speaker mean to say?” In conversation and in statutory interpretation, the literal content of a speaker’s words is almost always the best guide to what the speaker means to communicate. But it’s not the only guide. Contextual evidence can be persuasive, too.

What distinguishes staunch textualists from other interpreters is their reluctance to use legislative history—statements of legislators, committee reports, and the like—to inform the meaning that ought to be assigned to text. They also think it’s inappropriate to invoke a statute’s generic purpose (“Save the whales,” “Protect investors”) to twist its plain meaning. Most textualists, however, still examine statutory and contextual evidence to excavate “subjective intent”—to identify the problem that Congress meant to solve and the means it chose to solve it. “A fair reading of legislation,” Chief Justice John Roberts wrote in King v. Burwell, “demands a fair understanding of the legislative plan.”[22]

At the same time, a divergent strain of textualism—what I’ve taken to calling Know-Nothing Textualism—has taken hold in some quarters of the conservative legal movement. The Know-Nothing Textualist, like a 1970s French literary theorist, denies that we can ever know what Congress really means to do when it passes a law. The very question is incoherent: How can a multi-member body ever have a determinate intent? (“Congress is a they, not an it,” as the tired cliché has it.) Even if it could, why should we care? No amount of context can change the semantic meaning of the words on the page. And if assigning the most literal interpretation to a statute’s text subverts what Congress meant, so be it. The Know-Nothing judge consoles herself with the fable that all she’s doing is applying the law. She’s not an activist. You are.

This sort of blinkered Know-Nothingism was at the center of the plaintiffs’ argument in California v. Texas. When Congress repealed the mandate penalty, it left on the books a provision saying that most everyone “shall” secure coverage. And “shall” can only be read as a command to buy insurance, right? As one of the Fifth Circuit judges said at oral argument, “The only way to know what Congress intended”—the only way!—“is what they say through their legislation and they left in place the mandatory nature of the mandate.”[23] Justice Alito wrote much the same in his dissent: “The text of the provision is clear. It states that every covered individual ‘shall ensure that the individual, and any dependent of the individual is covered under minimum essential coverage.’ ‘Shall’ typically means must, not should. . . . Because the individual mandate is, in fact, a mandate, it cannot be considered a mere suggestion to purchase insurance.”[24]

Only a judge who was willfully blind to statutory context could say this. When the Supreme Court upheld the individual mandate back in 2012, it read the same word—“shall”—to afford people a “lawful choice” to either buy insurance or pay a penalty.[25] When Congress zeroed out the penalty, the natural inference is that Congress left the “lawful choice” in place. It’s fantasy to think that a Republican-controlled Congress in 2017 eliminated the penalty for going without insurance in order to coerce people into buying insurance.

Beyond that, the original text of the ACA confirms that Congress never imposed any mandatory obligation in the first place. After saying that everyone “shall” secure insurance, Congress exempted certain classes of people, including members of Indian tribes, from the penalty—but it didn’t exempt them from the “shall” command.[26] So were tribal members who went without insurance breaking the law without their knowledge? Of course not. Congress gave them a choice. Which is why, read in context, the “shall” can’t be understood as obligatory.

Know-Nothing Textualism was also the linchpin of the plaintiffs’ severability argument. Back in 2010, Congress made statutory findings that the individual mandate “is essential to creating effective health insurance markets.”[27] When Congress eliminated the tax penalty in 2017, it did not repeal those findings. From that failure to repeal, the plaintiffs drew the inference that Congress continued to believe, in 2017, that the requirement to secure insurance was still essential to the law, even as Congress eliminated the only means of enforcing that requirement. Justice Alito agreed. “Nothing has happened” since NFIB v. Sebelius, when he would have held that the individual mandate’s unconstitutionality rendered the entire ACA invalid, “that calls for a different conclusion now.”[28] He continued:

While the 2017 Act repealed the tax or penalty, it did not alter the statutory finding noted above, and the 2017 Act cannot plausibly be viewed as the manifestation of a congressional intent to preserve the ACA in altered form. The 2017 Act would not have passed the House without the votes of the Members who had voted to scrap the ACA just a few months earlier, and the repeal of the tax or penalty, which they obviously found particularly offensive, was their fallback option. They eliminated the tax or penalty and left the chips to fall as they might.[29]

This is the apotheosis of Know-Nothing Textualism. How can we possibly know what Congress would have wanted if the mandate were struck down? Maybe some members thought the penalty-free mandate was no longer essential; other members disagreed; and still other members (those “who had voted to scrap the ACA just a few months earlier”) hoped that the constitutional defect would take the law down (“left the chips to fall as they might”). It’s all very confusing, so we’ve got to stick to the findings.

That’s absurd, of course. We know for certain that Congress in 2017 believed it could safely ditch the mandate penalty and keep the rest of the ACA intact. We know because that’s what Congress did. It’s daft to think that Congress believed both that an enforceable mandate was no longer essential and that an unenforceable mandate was absolutely vital. As for the findings, they applied to a mandate backed by a penalty. It’s irresponsible to conclude that Congress believed they applied with equal force to a mandate backed by nothing.[30]

Justice Alito could reach the conclusion he did only by ignoring relevant statutory context. Literalism was his watchword. But Justice Alito wasn’t the only judge to adopt this approach to severability. Justice Gorsuch agreed, as did Judge O’Connor, who heard the case in district court (“[Congress] intended to preserve the Individual Mandate because the 2017 Congress, like the 2010 Congress, knew that provision is essential to the ACA”[31]). Though the Fifth Circuit equivocated on the severability question, it was open to the possibility that the whole law might have to be scrapped. As one of the judges asked at oral argument, “How do we know that some members of Congress didn’t say, ‘Aha, this is the silver bullet that’s going to undo the ACA, or Obamacare. So we’re going to go for this just because we know it’s going to bring it to a halt.”[32]

On both the merits and on severability, Justice Alito’s Know-Nothing Textualism entailed no sharp break with accepted interpretive practices among conservative jurists. Rather, the approach is of a piece with Justice Gorsuch’s opinion in Bostock v. Clayton County, which interpreted Title VII’s prohibition on sex discrimination to prohibit discrimination against gay and transgender people (“Only the written word is the law, and all persons are entitled to its benefit”).[33] Both Justices Alito’s and Gorsuch’s opinions epitomize a style of formalistic textualism that, as commentators as diverse as Tara Leigh Grove, Victoria Nourse, and William Eskridge have noted, has become firmly established in the federal courts.[34] Its doctrinal acceptability helps explain why a solid majority of the nine Republican-appointed judges who heard the case sided with the plaintiffs (Justices Alito and Gorsuch, and Judges Elrod, Engelhardt, and O’Connor) and why one wrote separately to express sympathy with their underlying legal claims (Justice Thomas). No Republican-appointed judge ever issued an opinion rejecting the plaintiffs’ arguments on the merits or on severability.

The plaintiffs’ arguments were poor, but they were not so poor that extant legal principles required the justices to reject them. There is a deeper explanation for why the plaintiffs lost, one that does not turn on the niceties of standing doctrine or of statutory interpretation.

III. Politics

Roll the tape back to 2010. Minutes after President Barack Obama signed the Affordable Care Act into law, lawsuits were filed challenging the constitutionality of the individual mandate, the part of the law requiring people to secure insurance or pay a tax penalty. At the time, the cases were widely dismissed as constitutional stunts that stood no chance of success in the federal courts.

By the time the Supreme Court heard them in 2012, however, the cases had become nail-biters. That year, Jack Balkin took a hard look at how that happened.[35] His account of constitutional change didn’t turn on nitty-gritty legal analysis. Instead, it hinged on the simple insight that “what people think is reasonable depends in part on what they think that other people think.”[36]

Supreme Court justices are people too. That’s why winning a constitutional argument requires more than showing that the argument is legally defensible. The justices must be reassured that the argument has enough public support that they won’t be written off as kooky for endorsing it. The Supreme Court came to find that the Constitution protected gay rights and gun rights, for example, only after those rights had become mainstream. A similar shift in public sentiment explains how the challenge to the individual mandate became plausible.

How exactly did the challengers manage it? It wasn’t enough for conservative lawyers to make clever arguments, nor was it enough for Tea Party activists to crash town halls. For Balkin, the key to the campaign’s success was the full-throated support of the Republican Party. It was harder for liberal lawyers to say that conservatives were just making stuff up about the Constitution when Republicans across the country, including local politicians, conservative judges, business leaders, and the guy on the bar stool said otherwise. An argument can’t be crazy if half the country buys it.

The Republican Party’s political support was forthcoming because the legal challenge directly advanced the party’s agenda. Republicans might cripple a law that they deplored; failing that, they could use the challenge to focus public outrage and mobilize voters. As it happened, the Supreme Court upheld the ACA by construing the individual mandate as an exercise of Congress’s power to tax. But the political gambit worked: In 2010, Republicans made historic gains in both the House and the Senate. President Obama called it a “shellacking.”[37]

Strictly on the legal merits, this most recent challenge to the individual mandate is weaker than the first one. But the case’s doctrinal weakness is not what most sharply distinguishes it from the first Obamacare suit. The biggest difference is that the conservative political establishment that did so much to make the two prior Obamacare cases seem reasonable did not lay the same groundwork here. California v. Texas stayed off the wall from start to finish.

The first sign that something was different about the case came in 2018, just months after it was filed. Instead of avoiding a debate over health reform, as they had before, Democratic Senate candidates used their opponents’ support for the lawsuit as a cudgel. Senator Joe Manchin of West Virginia fired a shotgun at a copy of the complaint;[38] then-Senator Claire McCaskill of Missouri ran ads excoriating her opponent, Josh Hawley, for joining a case that would rip protections from people with preexisting conditions.[39]

Hawley set the script for how Republicans would respond to these attacks.[40] They would ignore the lawsuit, not defend it, and press the misleading talking point that they supported protections for people with preexisting conditions. Protective of his Senate majority, Senator Mitch McConnell damned the lawsuit with faint praise, saying only that there was “nothing wrong with going to court. Americans do it all the time.”[41]

The pattern held in the 2020 election cycle. Embattled Senator Cory Gardner of Colorado, for example, refused to say where he stood on the case.[42] Instead, he released a campaign video promising to maintain preexisting-condition protections “no matter what happens to Obamacare.”[43] (Gardner lost.) When Democrats forced a vote on whether to bar President Trump’s Justice Department from supporting the lawsuit, Senator Gardner and five other incumbents in close elections broke from their party to side with Democrats. Republicans didn’t run on their party’s support for the lawsuit. They ran away from it.

The only major exception was President Trump. Indeed, the White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case and put it on the wall. But that bid failed: The case was just too radioactive for most Republican officeholders. Even Attorney General Bill Barr urged the president to moderate his position.[44] A more prudent president probably would have listened.

If the lawsuit was such a political liability for Republicans, why was it brought in the first place? The answer is that what’s bad for the party may still be good for some politicians. Pretty much every red-state attorney general who joined the lawsuit has ambitions for higher office. But winning a gubernatorial race in Utah or Texas means winning a Republican primary, and the primary electorate in these states is much more conservative than the general electorate. It might be advantageous for those politicians to press a position that’s bad news for Republican incumbents.

But the case put Republican leaders in a bind. Without getting crosswise with the White House or their base, they spent much of 2020 and 2021 signaling that they would prefer the lawsuit to go away. That effort reached almost comic proportions during the confirmation hearings for Justice Amy Coney Barrett. Senator McConnell said that “no one believes the Supreme Court is going to strike down the Affordable Care Act.”[45] Senator Lindsey Graham, the chairman of the Judiciary Committee, emphasized that severability doctrine requires judges “to save the statute, if possible.”[46] Senator Chuck Grassley said that it was “outrageous” to think that Justice Barrett would invalidate the law, because, “as a mother of seven, [she] clearly understands the importance of health care.”[47]

The Supreme Court got the message. During the first Obamacare case, groups affiliated with the Republican challengers filed fifty-nine amicus briefs, including one from the Chamber of Commerce and another on severability from Senator McConnell and dozens of Republican senators. In California v. Texas, only five amicus briefs were submitted to support the lawsuit, all from marginal players in the Republican political ecosystem. Senator McConnell sat it out.

Conservatives did not do the work to make the plaintiffs’ arguments seem reasonable, and they did not do the work because they did not want to win. That’s what foreordained the outcome here. The Supreme Court would have shredded its credibility with the American public if it had adopted what was still considered a wacky legal theory to invalidate a law extending insurance to tens of millions of people.

But imagine for a moment that California v. Texas had been brought in a different political environment—if, say, a Supreme Court with a six-justice conservative majority had heard this same challenge back in 2012, when Republicans were still pulling out all the stops to kill a law that had not been fully implemented. In that environment, arguments that today seem poor might have come to seem kind of reasonable, maybe even convincing. Perhaps it was the plaintiffs’ victory, not their defeat, that would have come to seem foreordained.

*            *            *

My point is not that Supreme Court justices mechanically vote to advance the preferences of the political party with which they are aligned. They don’t. Consistent with their role identities and jurisprudential commitments, they generally vote for the legal arguments they find convincing. My point, instead, is that what counts as convincing depends on what happens outside the courts. If enough people whom the justices regard as reasonable endorse an argument, it becomes more convincing, whatever its merits in the abstract. That’s why the line separating politics from constitutionalism is thinner than lawyers are socialized to believe. And, as California v. Texas suggests, cases about statutory interpretation—which is a kind of constitutional law in action—often provide the setting in which that line is contested.

Consider Justice Gorsuch’s opinion in Bostock, the Title VII case about gay and transgender discrimination. The opinion aligns with Justice Gorsuch’s commitment to the highly formalistic style of textualism that characterized Justice Alito’s dissent in California v. Texas. But the three liberal justices joined Justice Gorsuch’s opinion, even though the opinion is difficult to reconcile with the contextually sensitive approach to statutory interpretation that they normally endorse. It just isn’t the case that Congress, in 1964, meant to ban discrimination against gay and transgender people, much as it just isn’t the case that Congress, in 2017, meant to adopt a coercive mandate to purchase insurance. Nonetheless, the Democratic coalition had done the work to make the Title VII argument seem respectable. The liberal justices wanted to get to yes, and they found a way to get there. In California v. Texas, Republicans wanted to get to no—and the justices found a way to get there too.

That should teach us something about the reception that major legislation passed by a Democratic Congress is likely to receive on a 6–3 Supreme Court. As in California v. Texas, conservative lawyers are sure to fashion clever arguments about the illegality of a new Voting Rights Act or Medicare for All or the Green New Deal. The Republican Party is equally sure to throw its support behind those arguments. The resulting mobilization will make the Supreme Court open to legal challenges that target those laws or frustrate their implementation. That does not mean the outcome of the next case is inevitable: A conservative majority upheld the ACA in 2012, notwithstanding a full-court press from Republicans. But the justices’ views about what counts as reasonable, like anyone’s, are products of the political debates of our time. In the years and perhaps decades to come, the views of two-thirds of the Supreme Court’s justices will be powerfully shaped by the Republican Party, no matter how well Democrats perform at ballot box.

That’s not just a problem for Democrats. It’s a problem for democracy.

[*] Professor of Law, University of Michigan Law School. Portions of this essay were adapted from articles previously published in The Atlantic.

[2] California v. Texas, 141 S. Ct. 2104, 2114 (2021).

[3] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012).

[4] Texas v. United States, 945 F.3d 355, 383 (5th Cir. 2019).

[5] Nicholas Bagley, The Texans Challenging Obamacare Have No Standing, Atlantic (Dec. 18, 2018) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

[6] California v. Texas, 141 S. Ct. at 2114.

[7] Id. at 2118.

[8] Poe v. Ullman, 367 U.S. 497, 502 (1961) (plurality opinion).

[9] Id. at 508.

[10] Nicholas Bagley, A Puzzle About Standing, Resolved, Incidental Economist (June 26, 2018).

[11] Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (citations omitted). For a forceful articulation of this view in the context of the first Obamacare lawsuit, see Kevin Walsh, The Ghost that Slayed the Mandate, 64 Stan. L. Rev. 55, 75–77 (2012).

[12] California v. Texas, 141 S. Ct. 2104, 2122 (2021) (Thomas, J., concurring).

[13] Heckler v. Mathews, 465 U.S. 728 (1984); INS v. Chadha, 462 U.S. 919 (1983).

[14] California v. Texas, 141 S. Ct. at 2116.

[15] See Brief for State Appellees at 20, Texas v. United States, 945 F.3d 355 (5th Cir. 2019) (No. 19–10011).

[16] See Brief for Respondent/Cross-Petitioner States at 27, California v. Texas, 141 S. Ct. 2104 (Nos. 19–840, 19–1019) (arguing that “the state respondents’ injury stems from the mandate and other provisions—all of which .  .  . were specifically designed to work in tandem.”).

[17] Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998).

[18] California v. Texas, 141 S. Ct. at 2131–34 (Alito, J., dissenting); see also Brian Charles Lea, Situational Severability, 103 Va. L. Rev. 735 (2017) (exploring the link between standing and severability).

[19] Two of the cases Justice Alito discusses, for example, involved legal challenges to federal officers’ removal protections. The plaintiffs in those cases were not themselves subject to removal protections, much as the individual mandate did not apply directly to the states. Nonetheless, the plaintiffs were allowed to challenge their constitutionality. See Seila Law LLC v. Consumer Fin. Protection Bureau, 140 S. Ct. 2183 (2020) (a plaintiff challenged civil investigative demands issued by an officer who was protected by an unlawful removal restriction); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (similar). But the removal cases involved injuries arising from agency decisions that were themselves tainted because they were made by officers who were too insulated from political accountability. There’s no argument that the individual mandate’s supposed unconstitutionality taints other parts of the ACA in a comparably direct manner. Justice Alito also discusses Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987), but because the Supreme Court ultimately rejected the plaintiffs’ severability argument, it had no need to consider the plaintiffs’ standing, implicitly or otherwise. (Alaska Airlines was decided before Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1983), which required courts to address standing before turning to the merits.) More to the point, the case involved a challenge to a legislative veto that gave either house of Congress the right to disapprove of the kind of agency rules that caused the plaintiffs’ harm. Though the veto did not apply to plaintiffs, it allowed Congress to disapprove of rules that would have directly regulated the plaintiffs’ conduct—again, the challenged provision was tightly linked to the plaintiffs’ injury. Alaska Airlines is not good authority for the proposition that a plaintiff has standing to challenge the entirety of a sprawling, complex statute whenever it identifies a constitutional flaw in a discrete part.

[20] Jonathan H. Adler, On the Eve of Oral Argument in Texas v. U.S., Volokh Conspiracy (July 8, 2019).

[21] See Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 348 (2005).

[22] King v. Burwell, 576 U.S. 473, 498 (2015).

[23] Oral Argument, Texas v. United States, 945 F.3d 355 (5th Cir. 2019) (No. 19–10011).

[24] California v. Texas, 141 S. Ct. 2104, 2137 (2021) (Alito, J., dissenting) (ellipses omitted).

[25] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012).

[26] 26 U.S.C. § 5000A(e) (listing exemptions).

[27] 42 U.S.C. § 18091(2)(I).

[28] California v. Texas, 141 S. Ct. at 2139 (Alito, J., dissenting).

[29] Id.

[30] See, e.g., Dorsey v. United States, 567 U.S. 260, 274 (2012) (“[S]tatutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified. And Congress remains free to express any such intention either expressly or by implication as it chooses.”) (emphasis added).

[31] Texas v. United States, 340 F. Supp. 3d 579, 617 (N.D. Tex. 2018).

[32] Nicholas Bagley, The Rise of the Know-Nothing Judge, Atlantic (July 15, 2019).

[33] Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1737 (2020).

[34] See Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 268, 269 (2020) (arguing that “there are competing strands of textualism” and arguing that judges “should favor formalistic textualism.”); Victoria Nourse & William N. Eskridge, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, 96 N.Y.U. L. Rev. __ (forthcoming 2021) (“[T]extualism is fracturing, dividing itself into camps.”).

[35] Jack M. Balkin, From off the Wall to on the Wall: How the Mandate Challenge Went Mainstream, Atlantic (June 4, 2012).

[36] Id.

[37] Liz Halloran, Obama Humbled by Election ‘Shellacking’, NPR (Nov. 3, 2010).

[38] Kendall Karson, Shotgun-toting Manchin Shoots Anti-Obamacare Lawsuit in New Ad for Re-election Bid in West Virginia, ABC News (Sept. 10, 2018).

[39] Paulina Firozi, The Health 202: Claire McCaskill’s Promise to Save Preexisting Conditions Could Save Her Job, Wash. Post (Oct. 2, 2018).

[40] Jessie Hellmann, GOP Senate Candidate Says He Supports Pre-existing Conditions While Backing Lawsuit to End Them, Hill (Sept. 25, 2018).

[41] Nathaniel Weixel, McConnell Defends Trump-backed Lawsuit Against ObamaCare, Hill (Oct. 18, 2018).

[42] Jason Salzman, Gardner Erases His Opposition to Obamacare from His Campaign Website, Colo. Times Recorder (Jan. 14, 2020).

[43] Marshall Zelinger, Truth Test: Claim from Gardner’s Mom About Pre-existing Conditions Leaves Out One Detail, 9News (Sept. 17, 2020).

[44] Susannah Luthi, Trump Will Urge Supreme Court to Strike Down Obamacare, Politico (May 6, 2020).

[45] Chandelis Duster, McConnell Says ‘No One Believes’ Supreme Court Will Strike Down Obamacare Despite Barrett Confirmation, CNN (Oct. 13, 2020).

[46] Adam Liptak, ‘Severability’ Could Save Health Law, Graham Says and Barrett Seems to Agree, N.Y. Times (Nov. 3, 2020).

[47] Press Release, U.S. Senator Chuck Grassley, Grassley Opening Remarks at Senate Judiciary Committee Hearing on the Nomination of Judge Amy Coney Barrett to Serve as Associate Justice of the Supreme Court (Oct. 12, 2020).

Back to Main Page: 2020-2021 ACS Supreme Court Review »