The Twin Tragedies of Burwell and Obergefell


To phrase things delicately, the Supreme Court’s recent decisions in King v. Burwell and Obergefell v. Hodges are unequivocally horrendous. Legal textualists and political conservatives will remember these majority opinions as among the worst of the twenty-first century. While Kelo v. New London and NFIB v. Sebelius were equally despicable, these cases at least were based on plausible, albeit highly flawed, interpretations of existing law. King and Obergefell, in contrast, are purely results-oriented decisions that are at best maladroit workmanship and at worst flagrant judicial usurpations of legislative authority.

At this point, I unfortunately feel the need to offer a disclaimer. I fully support the legalization of same-sex marriage. To borrow the words of Justice Potter Stewart’s famous dissent in Griswold v. Connecticut, I think state laws against same-sex marriage are were “uncommonly silly.” If offered the ability to participate in a referendum, I would have voted to repeal these foolish laws and would have encouraged my fellow citizens to do so as well. Nevertheless, I believe Anthony Kennedy has (once again) tortured the Constitution in order to support his fallacious theory that the Fourteenth Amendment protects whatever he arbitrarily defines as human dignity.

It is incredibly lamentable that the above disclaimer is necessary. Had I not included it, I would be denounced as a homophobe, a bigot, or a Bible-toting pariah whose morality remains grounded in the Victorian Era, especially in light of the strong public support for same-sex marriage and today’s ruling in Obergefell. Those of you who know me are well aware that I do not give a damn about political correctness. I am not one to censor my words or moderate my beliefs to escape the condemnation of strangers (or friends) who know little of constitutional law or political philosophy. It is not for my own sake that I feel the need to qualify my opposition to Obergefell. Rather, it is for the sake of my argument, as will become apparent below.

When the ruling in Burwell was handed down, I was standing outside the Supreme Court, surrounded by college-age supporters of Obamacare (or as Justice Scalia wryly put it, SCOTUScare). These demonstrators were carrying signs listing state names and the number of Americans who would lose subsidies in each state if the case were decided in favor of the petitioners. The demonstrators rejoiced when Scotusblog reported the Court’s decision to affirm the Fourth Circuit—praised be John Roberts! Obamacare is saved!

When the ruling in Obergefell was handed down, I was sitting in my office at my internship. Immediately, my Facebook newsfeed exploded with jubilation. At last, same-sex marriage is legal! No longer can conservatives impede social progress through their animosity. Thanks to heroes such as Justice Kennedy and the notorious RBG, America has finally entered the twenty-first century.

What I did not notice after these opinions was any discussion of the opinions themselves. Sure, exuberant liberals posted a few of Justice Kennedy’s flowery quotes about human dignity and other wishy-washy nonsense. Yes, a few conservatives shared some wonderful excerpts from Antonin Scalia’s hilarious dissent in Burwell (I am personally guilty of sharing this link).

But precious few friends of mine have bothered to actually read or even skim the cases. If they had, they would have realized that these cases are about far more than illegal subsidies or same-sex marriage bans. Admittedly, the gutting of the Affordable Care Act would have been a wonderful side effect of a correct ruling in Burwell. But I am not overly concerned about subsidies; yet another Robin-Hood scheme to steal from the Haves to give to the Have-Nots means little to me at this point. Nor do I particularly care about same-sex marriage as a public policy issue; it does not affect me in the slightest, and our nation has far more pressing concerns.

I am greatly troubled, however, by the ramifications of these two decisions, which go far beyond public policy and deal severe blows to constitutionalism and our system of government. There is no need for me to criticize the so-called “logic” of each opinion. Justice Scalia’s scathing dissent in Burwell and Chief Justice Roberts’s condemnation of Obergefell’s ruling do so marvelously. Instead, I want to first describe each decision in terms of what it is not in order to expose threats to the rule of law.

I begin with Burwell, in which petitioners challenged the IRS’s interpretation of the Affordable Care Act, which claims insurance subsidies are available on every exchange, not just those established by state governments. When analyzing a federal agency’s statutory interpretation, the Court typically employs a process known as Chevron deference, as developed in the eponymous case Chevron U.S.A. v. Natural Resources Defense Council. If congressional intent is clear, the agency is required to enforce it. If congressional intent is ambiguous, the Court must decide whether the agency has reasonably interpreted the statute. While the Chevron test is a flawed judicial invention that often grants excessive leeway to executive agencies, it is at least preferable to the justices’ rewriting of laws.

Indeed, this is what the Fourth Circuit did in upholding the IRS interpretation. Concluding that the phrase “established by the State” is ambiguous, the judges deferred to the IRS, acknowledging that its interpretation was at least “permissible.” In essence, the Fourth Circuit admitted it was unable to resolve the alleged statutory ambiguity. The IRS was thus entitled to its interpretation.

The Supreme Court did not adopt this approach, however. Like the Fourth Circuit, it noted an ambiguity. But it eschewed Chevron in favor of a pragmatic approach to jurisprudence. If subsidies were limited to state exchanges, argued Chief Justice Roberts, the Act would be ineffective due to a death spiral. Because Congress probably did not intend this, Congress likely meant for ‘State’ to mean ‘state or federal government.’ Therefore, the IRS is correct, not because of deference, but because of the text of the law itself.

This is a highly important nuance for two reasons. Firstly, the lack of Chevron deference prevents a future Republican administration from interpreting the law as did the petitioners in Burwell—an interpretation that would preclude those in federal exchanges from receiving subsidies). To understand this, imagine Congress passed a law that imposed a 5% tariff on “orange juice.” A Democrat-controlled IRS might interpret this to apply to any juice that is colored orange. Applying Chevron deference, a court would allow the IRS to tax, for instance, both orange juice and grape juice with orange food dye, as the meaning of the phrase “orange juice” is ambiguous. However, a Republican-controlled IRS in 2017 could reverse the Democratic interpretation and tax only juice made from oranges. Under Chevron deference, this view is also valid, assuming the tariff is not elaborated upon elsewhere in the statute. However, by claiming that ‘established by the State’ objectively means ‘established by the State or the Federal Government,” the Court has prevented future Republican administrations from reinterpreting the law, thereby ensuring the Obama administration’s flawed interpretation is in essence legally codified.

Secondly, the Court relied on congressional intent rather than the text of the Affordable Care Act itself. I subscribe to a rather nihilistic view of congressional intent. How can a court possibly determine the collective intent of 535 legislators, each of whom has different motives for casting a vote? Even if it were possible to do so, should intent even matter? As Justices Scalia and Thomas believe, not really. The only reliable source of congressional intent is the text of the law itself; pseudo-scientific psychological inquiries into the desires of legislators should lacks any basis in law. But, as explained in the dissent, the Burwell majority nevertheless bowed to what it perceived to be congressional intent, ignoring the text of the Affordable Care Act in doing so. This defiance of statutory language contradicts the core mission of any court.

Burwell is something of a paradox at first glance, as the Court appeared to prostrate itself before an all-powerful Congress, eager to save legislation “if at all possible.” But this is not, as Chief Justice Roberts pretends, a case of judicial restraint. Instead, it is judicial usurpation at its worst. In order to rescue Congress from its ineptitude and purported “inartful drafting,” the Court has for the second time rewritten the Affordable Care Act, preventing future Republicans from interpreting the Act and usurping Congress’s rightful lawmaking power by mandating, despite alleged textual ambiguities, the permanent meaning of the statute.

If anything, Obergefell is an even greater judicial usurpation, as the Court gave new meaning to the Constitution itself rather than a mere statute, and in doing so stole the power not only of an elected body of representatives but also of generations of the people themselves. Rather than relying on principles of constitutional law, Justice Kennedy preached about dignity, autonomy, and other delightfully polemical nonsense that is better suited to an introductory philosophy course than the United States Reports.

There are several constitutionally feasible arguments that the Court could have used to reach its conclusion. I personally would have most favored a full faith and credit argument. While I am far from well versed in that area of constitutional law, the validity of a ruling requiring states to recognize same-sex marriages performed in other states seems to be at least legally plausible. But Justice Kennedy declined to even mention the clause.

It would have also been possible, as Chief Justice Roberts suggested during oral arguments, to resolve the case simply on the grounds of sex discrimination. As the Chief Justice asked, “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward case of sex discrimination?” Although only held to intermediate scrutiny and therefore justifiable by important governmental interests, impermissible sex discrimination is perhaps a legally sound reason to overturn same-sex marriage bans.

Similarly, the Court could have overturned same-sex marriage bans through the exclusive use of the Equal Protection Clause. This admittedly would have been a difficult case to make, as historical evidence directly rebuts the notion that the Clause was originally understood to prohibit these bans. But for those who subscribe to the noxious notion of a living Constitution, precedent such as Loving v. Virginia could be used to arrive at Justice Kennedy’s conclusion. Alas, as the few Americans who have actually bothered to read Obergefell are well aware, the Court “does not seriously engage” with equal protection claims; the majority opinion does not contain “anything resembling” typical equal protection jurisprudence. Instead, Justice Kennedy relied on a “synergy” between the Equal Protection and Due Process Clauses. Don’t worry if you fail to understand this new constitutional aphorism. The dissenting justices described Justice Kennedy’s thought process as “quite frankly difficult to follow.”

Instead of using sound legal processes, Justice Kennedy utilized dignity and other “mystical aphorisms of the fortune cookie.” But the workhorse of his opinion was substantive due process, the dangerous theory that the Fifth and Fourteenth Amendments’ protection of “liberty” extends beyond the mere absence of unjustified physical restraint guaranteed by procedural due process and instead applies also to intangible freedoms to generally act as one pleases. The conservative Supreme Court of the early 1900s used substantive due process to wrongly invalidate state maximum-hours laws in the infamous Lochner v. New York. It was incorrectly used to overturn a federal minimum wage law in Adkins v. Children’s Hospital (the Commerce Clause should have been used instead). In Tyson & Brother v. Banton, the Court employed substantive due process to strike down a state law restricting the resale of movie tickets. And the list goes on.

Needless to say, liberal jurists of the early twentieth-century strongly condemned substantive due process. As Oliver Wendell Holmes noted in Baldwin v. Missouri, it allows courts to “embody [their] moral or economic beliefs in its prohibitions.” Fortunately, the doctrine seemed to meet its demise in 1937, when a very leftist Rooseveltian Court overturned Lochner in West Coast Hotel v. Parrish.

In Lamb’s Chapel v. Center Moriches Union Free School District, Justice Scalia described the Lemon test of Establishment Clause violations as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles about after being repeatedly killed and buried.” Substantive due process is no different and was quickly resurrected by liberals after they rightfully murdered it. Most notably used in Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Lawrence v. Texas, substantive due process’s conception of liberty was expanded to include the rights to buy and use contraceptives, seek abortions, and engage in sodomy.

The problem with substantive due process is not that it necessarily creates bad public policy (I am quite happy with the absence of state laws mandating maximum working hours and banning contraception) but that it enables unelected and unaccountable justices to subvert the democratic process by haphazardly redefining liberty. Who can possibly explain why a ban on sodomy is an unconstitutional restraint on liberty whereas a minimum wage law is not? Why does liberty protect the newfound right to same-sex marriage but not the right to certain types of contracts? The answer, of course, is because five lawyers sitting on a bench in a distant capital whimsically said so.

(If you want some support for my claim that this decision was results-oriented, simply consider the fact that the Court took the extraordinarily unusual step of releasing the opinion on a Friday—a Friday that just so happened to be the anniversary of both Lawrence and United States v. Windsor. What a coincidence!)

Substantive due process is a menace to democracy. As long as the doctrine is alive, no democratically enacted law, no matter how popular, is safe from the arbitrariness of a capricious Supreme Court. Obergefell simply reinforces this principle in a highly salient manner and is therefore not only wrongly decided but also a flagrant judicial seizure of legislative prerogative.

And if you are blinded by the positive policy outcome in Obergefell and therefore unconvinced that substantive due process is a grave danger, open a history book and look up Dred Scott v. Sandford, in which the Court used substantive due process to overturn democratically enacted bans on slavery.

Back to my disclaimer. I included it in the hope that it would help convince my readers that it is logically consistent to be elated by the policy outcome of a legal decision but infuriated by its logic. And I further hope that I have inspired you read the cases. Don’t take my word for it; see for yourself why any supporter of judicial restraint and constitutional rule should be horribly dismayed by these two cases. I, for one, fear for the rule of law if a group of unrepresentative and unelected judges in Washington can rewrite statute or invent new rights while perched high in their comfortable ivory tower. So celebrate your precious Obamacare “SCOTUScare” subsidies. And celebrate same-sex marriages. But, as Chief Justice Roberts remarked, “do not celebrate the Constitution. It had nothing to do with it.”

This was a dark, dark week at the Supreme Court. But every cloud has its silver lining. We were treated to two delightful Scalia dissents. The word ‘jiggery-pokery’ has reentered the vernacular. But most importantly, we can at least take solace in the fact that the federal government has to pay us when it steals our raisins.

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