By Noah Millman
Yesterday, for the second time, the Supreme Court declined to overturn the health care law that was the signature legislative achievement of President Obama's first term. In a 6-3 decision written by Chief Justice John Roberts, the court determined that, notwithstanding the wording of the law, Congress plainly did not intend to exclude those enrolled in federal health insurance exchanges from federal subsidies. It said the law should be interpreted in light of Congress' intent rather than according to the strict letter of the statute.
Conservative activists will undoubtedly be surprised and outraged — surprised that Roberts proved "unreliable" once again, and outraged at his decision to go against the plain meaning of the statute. But inasmuch as they are surprised and outraged, this reflects a basic misunderstanding of what the court is, and does.
The popular image of the court's function is to limit the power of government, with conservatives and liberals taking different views on where those limits should be drawn strictly and where loosely (and libertarians saying they should be drawn strictly everywhere). But this is obviously impossible, because the court is itself a part of our system of government. According to the court a unique charism to discern the true meaning of the Constitution, and a unique appreciation for the limits it imposes, is to treat the justices as precisely the philosopher kings that conservatives in other contexts purport to abhor.
The difficulty with having the Supreme Court strike down legislation produced by a democratically elected majority cannot be answered by reference to the sanctity of the Constitution. (After all, all branches of government are guided by this document, which, by the way, does not enumerate among the court's powers the right to strike down legislation.) Nor can it be answered by reference to some hermeneutical rule (originalism, or strict construction, or anything else) that places the court above suspicion — because suspicion is, itself, a social and political matter, not a matter of objective fact.
Rather, the counter-majoritarian difficulty can only be answered pragmatically, by reference to the proper functioning of the government. There are a variety of possible such defenses, some more conservative (e.g., Madison's defense of the separation of powers) and some more liberal (such as John Hart Ely's hermeneutic of democratic inclusion). But they all boil down to this: We want the government to work this way and that requires that we have a court that plays this role.
So: How should we look at King v. Burwell from that perspective?
Critics say that if Congress wanted to amend the law to cure this apparent error in the text, it has the power to do so — so there's no reason for the court to step in. In fact, by doing so, the court is usurping legislative prerogative. But, by the same token, if Congress is unhappy with how the court has interpreted its intent, and truly wished there to be no federal subsidies, it has the power to write an explicit exclusion into the law, which the court would unquestionably honor. If we presume that Congress is functioning normally, then the stakes for this case are exceptionally low, and it hardly matters how the court decides.
The stakes are significant only because Congress is not functioning normally. Nobody believes that, if the court ruled that the subsidies were illegal, Congress would quickly set to work remedying its error. The practical consequence of the court ruling for the plaintiffs would have been to create chaos, and what legislation might emerge from that chaos is anybody's guess.
What might be the justification for ushering in that chaos? The only justification advanced is a rigid rule: Words mean what they mean, and the court's job is simply to enforce that fact. But there is ample evidence that this is not the case — prima facie, that the people who voted for the law in question don't think their words meant what the plaintiffs say they mean. And to say that the court should simply ignore these considerations is to treat a particular hermeneutic as more fundamental than the court's functional purpose under the Constitution.
All of the foregoing is reflected in Justice Roberts' ruling. That ruling is liberal in its construction of the law precisely because it is cognizant of the court's proper role in the Constitutional design — and hence is conservative about exercising the powers at the court's disposal.
Noah Millman is a senior editor and featured blogger at The American Conservative. His work has appeared in First Things, Commentary, The New York Times Book Review, and on The Economist's online blogs. He is also a screenwriter and filmmaker. Before embarking on a second career as a writer, Millman worked for 16 years in finance. He lives in Brooklyn with his wife and son.
