Friday, July 3, 2015

comedy or comity?

I'm sure you're aware of the SCOTUS decision in King v Burwell, thanks to your favorite "expert" media source telling you that it's a victory for people everywhere.  This same "expert" media source probably told you that the ACA is historically significant because it helps a lot of Americans deal with health care problems.  The "expert" source probably also assured you that the ACA must survive the King v Burwell challenge as well as the prior challenge heard at the SCOTUS, Nat'l Federation of Independent Business v Sebelius -- also known as "the penaltax decision" in some corners.

If you're like the great majority of people I know from my interactions outside the world of The Law, you probably think the role of the SCOTUS is to be arbiter over touchy-feely Social Issues, and you likely assume the role of the Court is to be "progressive" so that America may embody the kinds of "progress" you hold dear yourself.  I'd even bet you would hasten to cite Obergefell v Hodges or Roe v Wade to bolster your position.

However, if pressed on the bases or principles which let you conclude that the SCOTUS is there to resolve matters concerning social progress, you would not be able to defend the position.  You'd scurry about, looking for a Glenn Greenwald or Nina Totenberg to rescue you, because you don't have the legal acumen to make the jurisprudential argument(s) yourself.  Honestly, I blame the American education system, both K-12 and post-secondary, for your relative naivete here.  It's not your fault, not entirely at least.


The SCOTUS is not a social arbiter.  It is an appellate court, and as such, it hears questions of law.

Not facts.


So when you assume a SCOTUS decision is about people in a tight, awkward social bind that cries out for a progressive resolution, you're mistaking SCOTUS for something like Judge Judy or Judge Wapner or some other television judge who hears disputes between people, disputes about factual resolution.

The SCOTUS docket is not about that kind of dispute.  It's about interpretation of the law(s) in question.  And statutory or constitutional provision interpretation is not done by feelings, by a sense of "social justice", or by reference to what is/is not "progress," socially speaking.  The role of the SCOTUS is not to defend or promote social progress.  It is to maintain sanctity of the law, using jurisprudence as its tool.

If you come at these issues from "the left" and you orient your outlook toward "social progress," you are going to have to re-frame your understanding of the US Constitution and its 3-chambered government.

The body tasked with discerning social problems and creating decisions (via legislation) which perform what you'd like to imagine as "social progress"?  That would be the Congress.

The body charged with implementation of such decisions (made via Congressional legislation) would be the Executive branch.

And the entity whose job it is to resolve questions surrounding the Legislative and Executive acts, and their fidelity to the US Constitution?  Can you guess which body that might be?  HINT:  It's not the Congress, and it's not the Executive.

It's the Judiciary.  Read Article III of the Constitution, in case you were wondering or are inclined to doubt me.


When you think of trial courts handling federal law matters in a Judge Judy setting, that's done by the US District Courts.  It's not done by the SCOTUS.

At the SCOTUS level, a case like King v Burwell is not about the particular plaintiffs David King, Douglas Hurst, Brenda Levy and Rose Luck.  It's not about their grievances from a factual standpoint.  Those personalized gripes were heard at the US District Court level.  Once the matter moved on from the US District Court decision via appeal to the US Court of Appeals for the Fourth Circuit, the case was about legal interpretation and not factual complaints.

The questions get even more remote and ethereal when the matter moves from a US Court of Appeals to the SCOTUS.  The Court of Appeals is bound to hear appeals from USDC level decisions.  But once you move from US Court of Appeals to US Supreme Court, you have a filter in place.  The SCOTUS hears only cases that require its unique resolution powers.  A typical reason for SCOTUS to hear a legal question brought from a Court of Appeals decision would be a situation where several different federal courts (either District Courts or Courts of Appeals) have interpreted a federal law in disparate fashion.  The SCOTUS then may accept the case in order to resolve the interpretations of the federal law in question.**


A different kind of mandatory appellate review exists for SCOTUS when the case is one which has made its way through a state court system, exhausting all state court appellate decision power.  For example, in Maryland you could have a case which works its way from Maryland District Court or Maryland Circuit Court (the first level trial court) to the Maryland Court of Special Appeals (the first level appellate court) to the Maryland Court of Appeals (the highest appellate court).  Once the MD Court of Appeals has ruled on the question, the only legal appeal left to the litigants is to seek a SCOTUS ruling on the matter.  But such a path was not the way King v Burwell ended up in the SCOTUS docket, so for the sake of clarification let's move on from this digression.


When a matter like King v Burwell is discussed in the news media, it is always glossed-over with heart-string-pulling language designed to grab your attention.  Media outlets make their money selling advertisement time, and advertisers pay for click counts and "eyes and ears" on the media put into the infotainment stream accessible to newspaper, magazine, television, radio and internet users.

Thus, King v Burwell is presented to you as a matter of the SCOTUS "ruling on Obamacare" as if the questions presented in King v Burwell were as trite as "Justice Sotomayor, should Obamacare be allowed to stand -- or not?"

If the case were presented in the media as it is presented in briefs and oral arguments at the SCOTUS, the great majority of media consumers would experience an excess of intra-cranial pressure (also known as painful amounts of confusion) due their general ignorance of (1) the law generally, (2) how the law is managed by judges, and (3) the intricacies of appellate review as compared to the facts-based trial court style of judging done by Judge Judy or Judge Wapner on television.

Do not feel insulted by this assertion. Appellate matters are poorly understood even by many practicing lawyers.  Many lawyers who do extensive or exclusively trial work avoid appeals like the plague.  Do you know why that is?

I do.

It's because trial litigation is about feelings, and appellate litigation is about logic and reasoning.

In the American judicial system, if you do litigation which seeks "social progress," you are a trial lawyer.  That's where you get to emphasize how a dispute or event made someone feel.  That's the court where emotional attachments are paramount.  Once you move beyond the trial court level, things change.

Once you get to the appellate level, it's an intellectual game, not a feelings-based emotional enticement to rule in your favor.

So, maybe it would behoove you, help you, benefit you, assist you or inform you further to enlighten yourself on just exactly what the SCOTUS is and what it does, before you assume that Chief Justice Roberts rendered a good decision in King v Burwell.  You may come to learn that despite what Mr Roberts opined, the role of the SCOTUS is not to use feelings and emotional enticements toward preserving the sanctity of the ACA and protecting it from criticism.


Perhaps I'll say more on this later.


** For the truly curious sociopolitical/legal geek who hasn't been through law school and/or hasn't taken a Constitutional Law class in undergraduate studies, it helps to understand Article III, Section 2 as setting the boundaries for federal court jurisdiction.

1 comment:

Kevin Griffis, HHS Asst Secy for Public Affairs said...

Unfortunately, you are mistaken. The ACA is a grand-slam home run hit late in the 9th inning, winning the game. Criticism of the ACA usually is based on misinformation, apocryphal rumor, or outright lie. Chief Justice Roberts obviously understands the ACA, while Justices Scalia, Thomas and Alito clearly do not. You should re-examine the ACA until you realize Mr Chief Justice John Roberts correctly understands the legislation, at which point you will see how wrong you are and were. This landmark law will secure President Barack H. Obama's place in the American cultural history books. He saved lives when he signed the ACA into law. Apparently you'd prefer that those lives had been lost.