SEEING RED AND BLUE: CRITICS ATTACK JUDGES IN THE DC AND 4TH CIRCUITS OVER HEALTH CARE RULINGS

250px-Lewis_F_Powell,_Jr_U_S_Courthouse,_Richmond,_VA_Sep_03250px-Meade_and_Prettyman_CourthouseBelow is my column this morning in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. From a legisprudence standpoint, the two opinions are classic difference in how courts approach statutory interpretation. I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers. Here is the column.

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When the District of Columbia Circuit ruled last week that the Obama administration was violating the Affordable Care Act (ACA) in authorizing billions in tax credits, it took little time for leading Democrats to respond. Senate Majority Leader Harry Reid promptly labeled the ruling in Halbig v. Burwell “absurd,” simply the work of “activist Republican judges.” Less than two hours later, Democratically appointed judges across the river in Virginia reached the opposite result in King v. Burwell. The response from the right was equally predictable: The judges were Democratic drones carrying the water for the White House.

In a scripted town that defines all issues in blue or red, the lineup of the judges fits both parties’ preferred narrative. The opposing side was reduced to shameless opportunists. With that, the world made perfect sense and everyone was happy. The Potomac became simply another river with a left and right bank. Where you stand determines what is true.

Faux partisanship

The only problem is that none of it is true.

The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.

I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)

The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.

Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.

Real issues

At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.

The conflict could have involved chicken subsidies, and the result would have been the same.

Similarly, when the Supreme Court comes out with a 5-4 opinion, both parties denounce the justices on the opposing sides as ideologues — ignoring the obvious problem that the justices on their side showed the same predictable alignment. The reason that the result was predictable is that honest jurists strive to consistently apply principles of statutory interpretation.

Reid, however, assured Democrats that when the Halbig case goes before the full D.C. Circuit, a majority of Democratically nominated judges means it becomes “simple math.” Republicans are saying the same about the Supreme Court lineup. Both sides could find themselves disappointed. Jurists are not so easily pegged by political affiliation like some election night red or blue states on CNN’s “magic wall.”

What occurred last week on either side of the Potomac captured a divide in legal theory that has existed for decades, not cheap partisan politics.

Of course, none of this matters in today’s politics. People who disagree with us must be without honor. It is not enough to disagree with judges’ opinions; we must despise the judges. Regardless of how the next group of judges come out on these interpretive questions, we should at least be willing to accept that they are acting on long-standing judicial principles, not the partisan emotions of the moment.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

July 30, 2014

52 thoughts on “SEEING RED AND BLUE: CRITICS ATTACK JUDGES IN THE DC AND 4TH CIRCUITS OVER HEALTH CARE RULINGS”

  1. Mr Turley, an excellent article. Too bad that right after it posted, several of the bloggers continue to believe that their knowledge of the Constitution, including its thousands upon thousands of analyses, rulings, opinions, etc, exceeds that of each Justice on SCOTUS and Mr Turley. See Jill, above, who, while smugly asserting that she agrees with your point on demonization (Note: See her blog entries on the Muslim/Pakistan article posted earlier today in which she slings mud at those who have religious beliefs) is self-certain that you are wrong. See also Beth, above, who I nominate as the poster-child for this article.

  2. “I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text.”

    I would argue that “intentionalist”‘s may produce a particular result that is good but over a period of decades undermines the entire system.

    People perceive that the judges are not actually applying the law but instead are imposing their own views and lose confidence in the entire system leading to attacks on judges.

    The demons unleashed from Pandora’s Box long ago in a pervasive fashion (living Constitution) are now unfortunately, increasingly, coming back to torment the country.

  3. I don’t think the profit motive should be over looked in all the nastiness. Much easier to raise money from a target group when they hate and fear the other side.

    Squeeky Fromm
    Girl Reporter

  4. jonathanturley: ” I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree.”

    Agreed. That phenomenon is par for the course with the reactions I’ve received here when I’ve attempted to set the record straight on the law and policy basis of Operation Iraqi Freedom. The typical response has not been to debate the merits in an inquisitorial manner. Rather, I’ve found that those who disagree with my take on the issue either immediately move to disqualify or zealously assert a memetic talking point and then immediately move to disqualify.

    The social harm of close-minded partisanship is highlighted by the Iraq issue because it’s distorted in the politics despite deep bi-partisan roots and that primary sources easily accessed on-line provide a straightforward explanation for OIF. From the outset of its origin in 1990, the Iraq enforcement was infused with the fundamental premises of modern American leadership, and the political distortion of its coda explains the wrong turn in American foreign policy.

    The gulf between adversarial politics and inquisitorial truth-seeking was brought home to me when I wrote my term paper on OIF, “Regime Change in Iraq from Clinton to Bush”, with (as the title implies) a contextual approach. My national security law professor, one of America’s leading experts in the field, believed I might need FOIA applications and perhaps even his personal network to research my thesis. Instead, I found my questions answered up front by Google. I was let down by how openly sourced and straightforward Operation Iraqi Freedom actually is on the law and policy. That even my nationally renowned expert professor expected the paper topic to be obscure and convoluted brought home to me just how distorted the Iraq issue has been made for the public by partisans.

    From http://learning-curve.blogspot.com/2004/10/perspective-on-operation-iraqi-freedom.html :

    PREFACE: Most pundits, both supporters and opponents of Operation Iraqi Freedom, underutilize the available primary sources despite that the 1990-2003 Iraq enforcement has a thick law and policy trail in the UN Security Council, Congress, and especially the Office of the President. Why Iraq? Presidents Clinton and Bush, Congress, and the United Nations told us why. While there’s still room for speculative analysis, the work has been done for us. Primary sources that are easily accessed on-line provide a straightforward explanation for OIF. President Clinton, whose entire presidency was preoccupied by the Iraq enforcement, is the best source for understanding OIF.

    You and I may not ultimately agree that Operation Iraqi Freedom was justified on the merits, but we agree that inquisitorial process matters. Keep beating the drum, Professor Turley.

  5. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues.” – JT

    Oh that that was the only thing we lost when the front fell off.

  6. JT, I think this is a well argued column. I do think there is partisan demonization. This does prevent seeing other people as human beings with their own thoughts, arriving at conclusions which were honestly based, but with which we disagree.

    However, I also believe that the judicial branch has become politicized, not by party, but by alliance with powerful elites. That is why John Roberts, a Republican, saved the ACA by repudiating his own past legal rationals in every other case before him. The courts have not been standing for the rule of law, they have not held the executive to account in something as important as justice for victims of torture by the USG.

    People in our nation have every reason to distrust every branch of govt. That distrust was earned by each branch’s willingness to abrogate the rule of law. This distrust has been channeled into a useful idiocy–the red and blue state paradigm of good and evil, America’s newest religion.

    So yes, it is important to take each ruling and examine it carefully. Is there a basis in law for it? If so, good for that judge. But it is also correct to consider there are less than sterling motives in rulings, not based on party, but on a lawless rule of the few over the many.

  7. Thank you again Professor Turley for some much needed light in the dark dastardly political world we live in.

  8. I challenge all those who claim they give a dang about the “Color of Law” adjudications (lacking) of merits; to join my fight against such.

    Can’t never could until it tried!

    I’m doing so much in gaining – without much help; just think what could be done

    ————————————— if I had some!

    Paul is not on my side of the political spectrum (and not on much of anyone else’s here – so it appears); but he has stepped up – willing to help/support the cause against tyranny, cronyism and corruption.

    If – all of you – did some little something (such as petitioning The Professor) to simply ask the questions that beg;

    then (perhaps) a great thing would happen!

    ————————– Cause + efforts = effect!

    If not the case I’m working on (because you snidely say I’m being self serving {instead of looking at the big picture and how much evidence I really do have})

    then provide another case worthy – And I’ll Work It With YOU!

    ————————————————-Let’s DO it = together!

  9. “The best and most ethical judge is the one who rules for you and the worst and most corrupt is the one who rules against you.

    So it goes.”

    Well said, Mespo. Very well said.

  10. Dear Professor (and all those holding the ACA paramount).

    1st of all, as I’m one here who (apparently) knows the POTUS’s history better; I’d like to say that his efforts to provide the ACA are extraordinary.

    Any legal “flaws” can be fixed (and you Prof – should be helping to do so)!

    To garner Kennedy’s support his way (instead of Hillary’s) – POTUS Barack Obama made a commitment as a Senator in the running; and has kept his word (even after Senator Kennedy passed away).

    ————————————Which is a very rare thingy in D.C.!

    While we banter about (in part assisting {by default} the GOP efforts to assail) – the fact of the matter remains;

    if my enemy is working so hard to stop me doing it

    then what I’m doing must have something important going on.

    N’est-ce pas!

  11. Beth:

    ” It is time we demand the justices rule on the law, not on the politics.”

    *************************

    Courts sort of rule by this maxim:

    “Those who are too smart to engage in politics are punished by being governed by those who are dumber.”

    ~Plato

  12. The best and most ethical judge is the one who rules for you and the worst and most corrupt is the one who rules against you.

    So it goes.

    1. Mespo – the best and most ethical judge is the one who rules against you, but you can see how he/she came to their decision and you are not upset about it.

  13. The recent Supreme Court rulings in Hobby Lobby, etc leaves me no doubt that legal cases are resolved along party lines The Supreme Court is so political-it is unable to provide justice to the people. The decisions of judges who base decisions on politics have led to the public distrust and to believe there is no justice. The citizens must live with these decisions. You might wish to give respect to these judges, but the public does not see the reason for their decisions other that political. We should eliminate “justice by political party” and remove that decision making from the politicians. Judges should be elected and fired when the public finds the judges are no longer providing justice-only finding for their political cronyism. It is time we demand the justices rule on the law, not on the politics. We need to see reprimands of Kennedy and crew and other federal and state judges

  14. The author describes the District of Columbia as a “scripted town” and paints it as Red or Blue. I came here to Earth when you had a bigot named Woodrow Wilson as President. He segregated the armed services completely, and the District of Columbia so that blacks and whites did not meet. Later when Hoover was in office he created a scandal by inviting some blacks to a White House gathering. Things have changed from the white/black division to the red/blue one. The parties have shifted positions on the race thing too. To be Red is to be anti black. And Blue is more tolerant. Red and Blue. Never the Twain shall meet.

    1. Beldar – if you were here when Woodrow Wilson was around, your post are now beginning to make sense.

  15. Keep writing and speaking as you are, it is the light in our darkness. It is what drew many of us here.

  16. I grew up in a family w/ 4 kids. It is a much healthier dynamic than only child or 2 child families. You have less pettiness and more need to work things out w/ diverse interests. 2 child families can be more “efficient.” Each child playing a designated role. But, w/ more than 2 children, you must negotiate, barter, ally, more. Sometimes you’re allied w/ a sibling on certain issues, other times adverse. 2 children families can have a lot of pettiness. 1 child familes, fuggetaboutit! Our political family needs to adopt at least one more child.

  17. Jonathan, you can protest as much as much as you like, but it will do you no good. Extreme partisanship is part of the current process.

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