I was never tempted to go to law school. But I love to parse language and reasoning, so listening to the audio of this week’s Supreme Court health care arguments was -- in its nerdy way -- actually quite enjoyable.
Because the Court remains the only branch of the federal government that still stubbornly bans cameras from proceedings, we rely on audiotapes released later in the day to hear history unfold. It’s there where those of us who don’t get into the chamber get to listen for cadence, eloquence, and even humor.
Perhaps the most revealing thread for me was this: Supreme Court justices may live sequestered lives, but they are well aware of the political consequences of their decisions.
Justice Antonin Scalia, widely considered to be the Court’s most erudite as well as conservative member, consistently inserted real-world politics into his questioning.
During the exchange over whether the Affordable Care Act could survive if its requirement to buy insurance was struck down, Scalia signaled his knowledge of the intricacies of congressional sausage-making.
Remember the “Cornhusker kickback?” That’s a special Nebraska Medicaid exemption Democrats attached to the bill to win support for the health care bill as it was making its tortuous way through the Senate.
“It’s clear that Congress would not have passed it without that,” Scalia said. “It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.”
(Scalia, it should be noted, did not have it quite right. The Cornhusker kickback was stripped from the law pretty quickly. The moniker “kickback” may have had something to do with it.)
Scalia amplified the political reality of the choice later in the arguments. “There is no way that this Court’s decision is not going to distort the congressional process,” he asserted. “Whether we strike it all down or leave some of it in place, the congressional process will never be the same.”
The Court has a fine line to walk in this case, where it is being asked to decide the constitutionality of a massive political and policy document.
At different points throughout the three days of arguments, the justices acknowledged the stickiness of the situation. Justice Elena Kagan was among them.
“We have never suggested that we were going to say, 'Look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference,'” she said. “Instead, we look at the text that's actually given us.”
“I think that's exactly right,” Deputy Solicitor General Edwin Kneedler -- arguing in support of the law for the government -- happily replied, since this was the case he was making anyway. “As I said, it is a question of statutory interpretation.”
But Chief Justice John Roberts was not so happy. “Well, how is that? What's exactly right?” he interjected. “It's a question of statutory interpretation; that means you have to go through every line of the statute.”
Since, as Justice Scalia pointed out, the law runs 2,700 pages, no one wants to have to do that.
The political realities seemed particularly stark for justices who are often identified by the political leanings of the presidents who appointed them, but nonetheless like to consider themselves above politics.
Lawyers arguing for and against the law got this, and in their concluding statements, tried to appeal to those better angels.
“The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years,” Solicitor General Donald Verrilli said soberly on Wednesday. “And it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts' thought, was the best complex of options to handle this problem.”
But Paul Clement, a former solicitor general who was arguing against the law on behalf of 26 states, said it’s the solution Congress settled on that’s the problem.
“It's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not,” he said. “And it's a very strange conception of federalism that says that we can simply give the states an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the states to do whatever we tell them to.”
And there’s this: No matter what anyone says, no matter how many tea leaves we read, no one really knows in the end how the Court will decide. That will most likely have to wait until June.