Sometimes judging is easy, a matter of simply applying common sense to political disputes about the law. Other times it could not be harder, such as when judges must decide whether to apply great constitutional principles of law like equality to a society still much beholden to ancient prejudices and mores.
In 24 hours, the U.S. Supreme Court delivered big decisions that charted both paths, first upholding a key part of the Affordable Care Act that helps poor and middle-class Americans buy health insurance and then striking down the few remaining obstacles to same-sex couples getting married. In the second case, the court declared that the Constitution’s equal-protection clause guaranteed gays and lesbians the same access as other couples to the government-regulated institution of marriage.
Both decisions were monumental because both matters—Obamacare and gay marriage—dominate the political agenda of the rising Republican Party, if only momentarily. Most of the country, though not Arkansas and the rest of the South, has moved leagues the past couple of years in opinions about both controversies. Polls this month show that 61 percent of Americans now think same-sex marriage is OK, and for the first time since its enactment in 2010 a slight majority of people now are positive about Obamacare since none of the horrors predicted for it have materialized.
No state had more at stake in both cases than Arkansas, where more than 300,000 people have gained insurance owing to the Obama insurance-reform law and where state and federal court decisions legalizing same-sex unions, temporarily stayed, had left gay and lesbian couples and the general public in limbo. Arkansas was one of only 13 states that still officially banned such marriages. Now that matter is forever settled and talk about defiance, like that by our former governor, Mike Huckabee, is exactly that—simple nattering. Defiance of the law, even when the law is settled by the highest court in the land, cannot be tolerated in a nation of laws, a lesson Arkansas learned bitterly in 1957 when the governor tried to preserve segregated schools in defiance of the Supreme Court.
Let it be observed that every word written by the court, pro and con, on both Obamacare and same-sex marriage was penned by the five Republican justices, each appointed for his celebrated conservative values and political support. The four judges appointed by Democrats helped make the majority in both cases, but these were Republican battles and only their voices were apt to carry weight.
The easy decision, of course, was King v. Burwell, the last desperate effort to cripple the Affordable Care Act, a.k.a. Obamacare.
In an opinion written by Chief Justice John G. Roberts, the court said the act does exactly what all 535 members of Congress who voted for or against it in 2010, the president, the insurance industry and every person involved in that historic battle thought at the time that it did. It offers subsidies to poor and middle-class Americans who can’t afford to buy health insurance on their own regardless of where they live.
Long after it was signed into law, a lawyer working for opponents of the law spotted five vague words in a section that was written long before work on the bill was completed. The section said people in an insurance exchange operated by the state were eligible for tax credits to help them buy insurance. Standing alone, that sentence in a 900-page law might be interpreted to mean that the tax credits were available only in exchanges run by a state, not those set up by the federal government or jointly with a state, like Arkansas’.
Never mind that everyone, including Republican senators like Olympia Snowe of Maine who helped draft that part of the law, intended for the subsidies to apply to everyone with low incomes. Until 2012, two years after the law’s passage, not one person had ever uttered the possibility that people only in the few states that ran their own exchange could buy insurance.
Republicans sued in several states, hoping that a court would hold that the five words in one sentence overrode the whole drift and purpose of the act and thus wreck Obamacare. One court did and, to the shock of most court observers, the Supreme Court took the appeal.
Justice Roberts, appointed by President George W. Bush, testified at his confirmation hearings that he would always follow precedent unless there was an overwhelming sense that the common law needed to be changed. The Supreme Court had ruled many times that a single provision of a major law could not be isolated and made to be controlling if it conflicted with the general purposes of the law. As late as January, Justice Antonin Scalia told litigants in an appeal of a fair-housing decision: “We look at the entire law. We have to make sense of the law as a whole.” The court could not give effect to one conflicting phrase if it produced a “strange” effect.
And limiting subsidies to people who were lucky enough to be in a state-operated exchange would give a strange, even bizarre, effect to the Affordable Care Act, as Justice Roberts observed. The stated purpose of the act was to extend health insurance to all Americans by various means, the biggest of which was to give tax credits to people whose incomes were too small to afford the monthly premiums. When the Senate Public Health and Welfare Committee first drafted the subsidy every state was expected to create and operate an insurance exchange. Later, the two drafting committees decided that a few states might prefer to be in a national exchange where there might be more plans or lower premiums. Also, a few states might just for political reasons refuse to create an exchange. So the bill was expanded to allow a federal exchange where people in those states could still buy insurance. But in putting the different plans together for a Senate vote in late 2009, the drafters did not catch the seemingly restrictive language in that sentence.
Those glitches are common in every legislative body and Congress later (it’s done so this year) corrects them by introducing “technical-correction” bills that fix all the confusing and conflicting language. They usually pass without debate. But that could not be done with Obamacare because Republicans, dominant in both houses since 2011, were united that they would not permit any technical corrections to Obamacare, hoping that a careless imperfection might torpedo the whole thing.
Justice Roberts and Justice Anthony M. Kennedy (a Ronald Reagan appointee who also wrote Friday’s same-sex marriage decision) concluded that the issue with the subsidies was nonexistent. A reading of the whole law and all the comment and testimony on it shows that everyone involved intended for people to be able to buy insurance with government help if they needed it. One confusing phrase could not jeopardize the whole purpose of the law.
Justice Scalia and his two bitter-end disciples, Clarence Thomas and Samuel A. Alito Jr., ignored the precedents of considering an act as a whole and said that regardless of what everyone said and wrote at the time, Congress must have secretly intended to sabotage the act by denying help to people in states where people could buy insurance only from companies in a federally operated exchange.
The big majority—six justices—concluded that Congress could not have been so absurd as to actually plan to wreck its own signature achievement, accessible health care for everyone.
Had Scalia prevailed, 50,000 middle-class Arkansans would lose health insurance acquired from the federal-state exchange and perhaps 150,000 others would have been prevented from acquiring it the next two years.
The insurance of another 250,000 Arkansans who got insurance on the exchange through Medicaid, would be in jeopardy, too, because Republicans would have challenged that subsidy if the court had ruled that one form of subsidy, fundable tax credits, was barred.
All of them can be pleased that common sense ruled the day. — Ernie Dumas
