The secret principle behind all statutory and constitutional interpretation

We haven't yet discussed the latest legal challenge to Obamacare, which is now in the news thanks to conflicting decisions issued by the DC Circuit and the 4th Circuit on the same day last week.

The issue is that the Obamacare statute says that certain tax credits are available to people who enroll for health insurance on exchanges "established by the State." The act defines "State" to mean a state or territory of the United States, so this raises the question of whether the tax credits are available to people who enrolled on an exchange established not by a state but by the federal government. This is a live issue because many states have not established exchanges, so the federal government has stepped in as a backstop, and the IRS has issued regulations permitting the tax credits for people who enrolled on those federal exchanges.

The court decisions have mostly fallen down along party lines, as has the underlying commentary. Republican judges have found the language of the statute to be unambiguous: the tax credits are authorized only for people who enrolled in exchanges "established by the State" and not by the federal government. Whether or not this was what was "intended" by Congress, there's no real ambiguity in the statute, so it must be applied as written. Besides, this kind of carrot-and-stick federalism is not unheard of—the federal government often puts conditions on its statutes to encourage states to act—so the result is not absurd.

Democratic judges have found plenty of ambiguity in the statute when viewed as a whole, and believe the result—denying affordable health insurance to millions based on a poorly drafted statute—is absurd and clearly contravenes the intent of Congress and the purpose of the Act.

This suspiciously partisan split over the meaning of words has led to some consternation and cynicism. For example, liberal blogger Matt Yglesias:

The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.

Libertarianish economist Scott Sumner agrees, and goes further:

It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.

That's a bold statement. Can the principles of the Enlightenment be saved from this pit of cynicism and contempt?

I think so. Here's the secret principle behind all good faith legal decision making, including all statutory and constitutional interpretation—a principle that is deeply held by all public intellectuals and by all honest legal scholars, judges and justices of left, right, and center:

Do justice.

Well, okay, you say, but that's a pointless abstraction. Not so. It is the saving grace girding our legal system. Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away.

Let's take Matt Yglesias, for example. In his post on the new Obamacare challenges, he starts out by stating how frivolous he thinks this legal challenge is:

I'm no lawyer, but from the first time I heard it the theory advanced by the plaintiffs in the Halbig case has struck me as laughably far-fetched and as best I can tell most objective legal observers agree that they are unlikely to prevail.

Reader(s)™ may remember, however, that Yglesias was one of the major proponents of the Trillion Dollar Platinum Coin. In that case, he applied a hyper-textualist reading to the coinage statute to find that it allowed minting of platinum coins of any denomination whatsoever. Now, however, he finds the same analysis (hypertextualism) to be laughably far-fetched. How can these positions possibly be reconciled? Isn't Yglesias just a hypocrite?

Not at all. The cases can easily be reconciled as long as you treat hyper-textualism as a tool to do justice rather than something to be achieved for its own case. In the Platinum Coin case, Yglesias was seduced by hyper-textualism because it provided an opportunity to do what he thought was just: to fund the federal government over what he thought was an insane and probably unconstitutional obstructionism by Republicans. In the new Obamacare case, however, hyper-textualism does a terrible injustice by undoing Obamacare.

There's a common principle here, that everyone can agree with: it is right, proper, and moral to use every tool at one's disposal to do justice. And this makes perfect sense of the partisan judicial split. Republicans are happy to apply a hyper-textualist interpretation of the Obamacare act because they don't think it's a just law—or at least, they don't think undoing it would lead to any profound injustice. Indeed, they probably see it as poetic justice that the law would be undone on a technicality, given the unusual and rushed procedures used to get it passed. Democrats, on the other hand, see the hyper-textualist interpretation as leading to so much injustice as to be practically absurd.

Descriptively speaking, I think there's really an underlying ur-canon of statutory interpretation: apply the plain text unless it seems really unfair or unjust. That's what both the Republican and Democratic judges are actually doing in this Obamacare case, and that's what most judges do most of the time. I don't have a problem with that, and you shouldn't either.

Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

"[J]udges are ill suited to resolve social problems."

Dahlia Lithwick has a column at The Nation entitled, "One Nation by and for the Corporations." The unsurprising thesis is that the courts, most notably the Supreme Court, are bought and paid for by business interests. According to Lithwick, this campaign is insidious and damaging:

There is ample language in the Court’s recent rulings to demonstrate that judges are ill suited to resolve social problems, that such efforts should be constrained and monitored and fundamentally mistrusted. But it’s one thing to trim the sails of the judicial branch; it’s quite another to transfer power that once rested with the judiciary directly back to groups that hold power already. Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

It is ironic to see that the liberal position has become that judges are ill-suited to solve social problems. But perhaps judges are ill-suited to resolve social problems only when their resolution is favored by conservatives. Or perhaps, as some say, liberals should not hate the players, but rather hate the game (even though they made up the rules).

"If they decide [the Obamacare case] by 5-4, then yes, it’s disheartening to me, because my life was a fraud. ..."

"...Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty."

That's Yale Law Professor Akhil Reed Amar, emoting (perhaps sarcastically?) about the possibility that the Supreme Court will find the individual mandate to be beyond Congress's power under the Commerce Clause.

This gives me something to be thankful for: whichever way the Supreme Court decides the Obamacare case, my life will not be rendered a fraud. This is one of the advantages, I guess, of actually practicing law instead of sitting around thinking about it all day.

The New York Times editorial board spreads lies about Wisconsin and equal pay

Here. I'm not going to spend any more time debunking this stuff, but this is why I try never to read newspaper editorials.

UPDATE 4/24/2012:

The Times doubles down, with another editorial today in which it falsely states that Scott Walker "this month signed a law repealing a 2009 state wage discrimination law." The Equal Pay Enforcement Act was not a wage discrimination law. More proof that Facts are dead.

"Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system."

Says Jonathan Chait.

What do you think, Mr. Gillette? Are you that cynical?

Justice Thomas stands up for the little guy

Recently, the Supreme Court decided the case of Pacific v. Valladolid.  It is a decidedly unsexy case, and its ruling did not provoke any headlines in the New York Times. The unsexy issue: whether the Longshore and Harbor Worker's Compensation Act extends to an employee who died on land rather than at sea, if the death had a "substantial nexus" to his work at sea. According to the Supreme Court, it does.

Why is this bloggable?

First, the opinion was unanimous.  There was no ideological split, though Alito and Scalia did file a separate opinion concurring in part and concurring in the judgment.

Second, the case came up from the Ninth Circuit, which the Supreme Court famously likes to smack down.  And the Ninth Circuit's opinion was in conflict with two other circuits which had decided the issue, so it may have seemed ripe for a smackin'.

Third, the losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to.

Fourth, the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout."  This would seem to refute the argument that textualism is just a smokescreen that judges use to get the results that they subjectively prefer.  (For another example, see this prior post.)

In other words, this case should make you question your cynicism.

Extreme skepticism

Yesterday a man named Tim Profitt forcefully pressed his foot down on the back, shoulder, or neck of a woman named Lauren Valle, who was already restrained, face-down, by another man.  Here's the video.



Ms. Valle is a MoveOn.org volunteer who was dressed up in Rand Paul gear and a blonde wig outside the venue for a debate between Rand Paul and his opponent, Jack Conway.  Apparently, she intended to confront Paul and present him with an "award" for being friendly to corporations.  When she attempted to do so, the events depicted in the video transpired.

Mr. Profitt was a volunteer with the Rand campaign, but the campaign has now "disassociated itself" with him.  He faces fourth-degree assault charges.  He claims we was just trying to defend Mr. Paul from an unknown assailant.

Jack Conway condemned the men involved in the incident in a strangely macho way:  "physical violence by a man against a woman must never be tolerated."  (Man-on-man violence is apparently tolerable, at least in some circumstances.  And woman-on-woman violence?  That's just hot.  Rrrr-owww!)

Mr. Profitt did not come forward as the "stomper" until late in the day today.  Before he came forward, Ann Alhouse speculated that the entire incident might have been staged:

Are the men in the T-shirts also from Moveon.org? Who were they? There were no arrests and though there was a crowd, no one bothered to have detained these men. Did they just melt back into the night? It's very convenient that these bad actors were wearing labels identifying them.

Hundreds of comments ensued.  Most of them bought into the conspiracy theory that the entire incident was staged.  My own interpretation of the video--and this was before Mr. Proffitt came forward--made me think that this was extremely unlikely.  The men who subdued Ms. Valle did not appear to be acting to me.  Mr. Proffitt's attack seemed so believably impulsive.  And the reaction of the others around--e.g., "no no no no no no no!" when Mr. Proffitt did his thing--seemed authentic.

Moreover, there were easy answers to all of Althouse's questions.  There were no arrests because there was a crowd.  Yes, the men melted back into the night--or at least melted back into the embrace of their compatriots.  And it's not convenient that the men were wearing Rand Paul insignia; it's exactly what you would expect political activists to be wearing at a debate.  

That so many of Althouse's commenters bought into the conspiracy theory is depressing to me.  It's one thing to be skeptical.  I am an avowed skeptic.  But in order to a functioning skeptic you have to be skeptical of your own skepticism.  You have to ask yourself, "Why am I inclined to distrust my own eyes?" If you don't cross-examine yourself with your own biases, you'll become either a cynic or an ideologue.  That's not good.

But this is the depressing part.  It's hard to find evidence of anyone on the Internet who isn't either an ideologue or a cynic.

UPDATE:

More video!

This shows that Ms. Valle rushed Rand Paul's car and tried to shove something at him through his open window. She is pulled away. Then, at about the :55 second mark, she comes around from behind the car to make a second run at the candidate. Presumably this is when she was tackled and treated roughly.

The Tipping Point: Are We There Yet?

MinnPost.com has two articles about the state of affairs for Minnesota's public defenders. The articles paint a bleak picture. Judge Sharon Hall is quoted as saying that Minnesota courts are "fast becoming the courts of McJustice."

According to MinnPost, Minnesota budgetary woes have led to cutting the number of public defenders. The result is that remaining public defenders now carry twice the caseload recommended by the American Bar Association.

The result of this shortage is twofold. One result is fairly obvious, the other strikes me as very weird. I will start with the weird one.

A partial reply to Mr. Gillette's partial defense of licensing requirements

 I try never to be cynical -- just skeptical. But it seems hard to deny that at least part of the reason we have bar exams and boards of legal examiners is to distort the market for legal services in favor of lawyers (over clients) by artificially reducing the supply of available lawyers. In fact, I’ve read a few interesting blog posts recently – see here and here, for example – about whether there should even be a bar exam. But I will accept your premise that there is also some other justification that actually serves the public good. Your “bulwark” against the “machinations of unscrupulous lawyers” suffices for the sake of argument. (After all, who ever heard of such a thing as an unscrupulous lawyer? Thank goodness we have the bar exam to protect us from such hypothetical monsters!)