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Does the Constitution Mean what the Supreme Court Says It Means?

Monday, September 18, 2017 @ 10:12 AM

Does the Constitution Mean what the Supreme Court Says It Means? Bryan Fischer Host of “Focal Point” MORENote: this is the first in a series of columns written to explain the theme “Everything you’ve heard about the Constitution is wrong.” I’m starting this series in honor of the Constitution, which had its 230th birthday on Sunday, September 17, 2017.

An obviously distressed young female student came into the office of Cornell’s lead Title IX investigator in the fall of 2015. The woman had come in the hopes that Elizabeth McGrath could ease her anguish.

Something terrible had happened to this student that same day, something that had “triggered” an intense emotional reaction inside her; something “oppressive” had happened that left her shaken and in need of urgent help.

What had happened to this poor young woman? Had she been mugged? Had she been assaulted? Had she been threatened? Had she witnessed an act of violence? Had someone flung racist epithets at her? Nope.

She had had the terrifying misfortune of being given a free copy of the United States Constitution. She not only received it but read it, and soon the tremors began. The entire episode left her devastated and trembling.

Said the student, “Is there any way that maybe like we can get rid of it somehow or I can just see that like maybe it will be like therapy for me, like if you can like shred it or something?”

Ms. McGrath eagerly and happily sympathized. “It is a flawed document, she lamented, “and the people who wrote it are certainly flawed individuals in my mind.”

And so without further ado, Ms. McGrath did the only thing any responsible adult in higher education would do, when faced with such a dilemma. She took the nation’s organic legal document, the supreme law of our land, and proceeded to cut it to pieces and leave it in strips in the waste basket.

Enormously relieved to be shuck of such awful baggage, the student left her office with her burden lifted.

This episode, part of an undercover investigative project of James O’Keefe’s Project Veritas, actually happened, with an investigator playing the part of the student. And worse, the faculties at Yale, Syracuse, Vassar and Oberlin did the same thing.         Every school ran the Constitution through the literary equivalent of a wood chipper.

The schools, of course, did not blame themselves for ripping the Constitution to shreds. Oh no, that was the fault of the “deplorable” conduct of the investigator.

My response to this sad but revealing affair is simple: if you’re talking about shredding the Constitution, Cornell is way late to the party. The Supreme Court has been doing that very thing for over 200 years.

“The weakest of the three departments of power”

The famous British politician William Gladstone, who served as prime minister of England no less than four times over his 60 year career in politics, once observed that “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.” Gladstone was talking about the Constitution as it came from the hands of the Founders, not the one that has been twisted, distorted, and wrenched out of shape by renegade and out-of-control judges. He would weep today to see what a hyperactive judiciary has done to this masterpiece.

Our Constitution has been shredded and mangled by judicial tyrants wearing black robes, who have left this once magnificent document in tatters and made it virtually unrecognizable. Only fragile strips of parchment remain from what once was – and still can be – the most remarkable political document in the history of human civilization.

The Constitution was intended to serve as the pillar on which our entire system of government rests. And yet federal judges, swinging their gavels like sledgehammers, have reduced much of it to rubble.

The Supreme Court has arrogated to itself a power the Founders never intended it to have, a power not delegated to the Court anywhere in the Constitution. The Court was designed to be the least powerful branch of government, its jurisdiction and authority strictly circumscribed by clear and unambiguous boundaries.

“At the establishment of our constitutions,” wrote Jefferson, “the judiciary bodies were supposed to be the most helpless and harmless members of the government.”

Joseph Story concurred (Commentaries, Sec 1595): “The judiciary is, beyond comparison, the weakest of the three departments of power.”

The Court was considered to possess so little power that It met in a closet in its early days, and then bounced around from room to room in the Capitol until it eventually landed in chambers abandoned by the Senate. It did not even have its own building until 1934.

It convened for less than two weeks a year over its first decade, and then only for six to eight weeks a year for the next half century.

Joseph Story, author of the magisterial Commentaries on the Constitution agreed with Jefferson about the impotence of the Court as the Founders designed it:

The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy, or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature, not only commands the purse, but prescribes the rules, by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword, or the purse; no direction either of the strength, or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force, nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm, for the efficacious exercise even of this faculty” (Sec. 1594).

The Court was deliberately designed by the Founders to be so weak that it could not compel anyone to do anything. It could issue an opinion, but if the Executive branch looked at its ruling, decided it was flatly unconstitutional, and refused to enforce such an unjust decree, the Court would be left utterly helpless. It’s about time in our own day for the Executive to do its job and stop mindlessly enforcing edicts it knows are wrong.

As Story added (Sec. 1582), “It may, in the last place, be observed, that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom … from its total incapacity to support its usurpations by force.”

Thus the Court, under the Founders’ Constitution, would be entirely dependent upon the goodwill of the American people since it has no authority to enforce its opinions by force. None. As long as the Court behaved honorably, there was no reason for the American people to reject its opinions.

But in our day, when the Court is completely out of control and acts as a law unto itself, it now owes its influence purely to the obsequious acquiescence of the American people to its tyrannical edicts. If the people of a given state and their elected representatives decided to ignore a plainly unconstitutional opinion from the Court, there’s not a thing the Court can do about it. It has no police force at its disposal which it can summon to punish miscreants.

“The important constitutional check … the power of instituting impeachments”

The power of impeachment was designed by the Founders to be a real and present check on the hubris of activist judges:

“And the inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger, that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations” (Story, Sec 1582).

The contemporary problem, quite obviously, is that Congress has dispossessed itself of this power, through its own weakness and meek capitulation to the bullying edicts of the justices. That which was designed to be the ultimate, in fact the only necessary, check on renegade justices has been discarded and left useless and unemployed while the Court struts unimpeded throughout the land, making a wreck of virtually everything it touches. The power of impeachment is utterly worthless unless it is used, like an eminently necessary tool left to rust in the bottom of a tool box.

“A new rule for future cases”

Remarkably, there is another tool given to Congress to rein in a renegade Supreme Court, which is rarely if ever talked about. Congress can enact a law, in reference to an egregiously bad Supreme Court decision, that compels a different result the next time a similar case comes before it. Now it cannot reverse a bad Court decision, but it can make sure the same mistake is not repeated.

This is how Story expresses it (Sec. 1581):

“It is not true, in the second place, that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense, than might be done by a future legislature of the United States. The theory, neither of the British nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. In the former, as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination, once made, in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies, in all its consequences, exactly in the same manner and extent to the state governments, as to the national government, now under consideration. Not the least difference can be pointed out in any view of the subject.”

To give but one example, sixteen couples went before the Supreme Court to gain recognition for their same sex marriages. The Court, in Obergefell v. Hodges, opined that they could. So that decision is settled, and cannot be reversed. Fine. Those sixteen couples get their marriage licenses.

But Congress has the liberty, under the Founders’ Constitution, to enact legislation that directs future courts to refuse marital recognition to the next same-sex couple that darkens their doors. It’s long past time for them to do it.

The Supreme Court, not the supreme branch of government

The Constitution was intended by the Framers to strictly limit the size, reach and power of the federal government. But the Court, by imposing its own will over the will of the Constitution itself, has transmogrified the central government into a freedom-destroying behemoth which endangers every liberty which the Constitution was intended to protect.

The Court has appointed itself the supreme branch of government rather than simply one of three co-equal branches. But as Gov. Mike Huckabee has often pointed out, it is the supreme court, not the supreme branch of government. As a friend of mine is fond of saying, “The Supreme Court – isn’t.”

By claiming a supreme authority it is not given anywhere in the Constitution, the Court now exercises dictatorial authority over the other two branches of the central government and over the American people as a whole. It now rides the beast of the federal government like the great harlot of Revelation 17.

It is time for us to pull this rider off the beast, and, with regard to the beast itself, it is time for “We the People” once again, as Thomas Jefferson put it, to “bind him down from mischief by the chains of the Constitution.”

The Constitution means what the Founders intended it to mean

How do we do this?  I read a story one time about an American tourist who was lost in the English countryside. He asked a local farmer, “How do I get to London?” The farmer thought for a moment and said “Well, if I was going to London, I wouldn’t start from here.”

And so to find our way home, we must begin at the only place it is possible to begin, and that is by understanding the Constitution as it was crafted by the Founders. One of the cardinal principles of interpreting any piece of literature, whether it’s the Bible, the Constitution, or Shakespeare, or Calvin and Hobbes, is that a text means exactly what its author (or authors) intended it to mean. No more and no less.

Long-time literary critic and Yale and University of Virginia professor E.D. Hirsch correctly explained in his book Validity in Interpretation, no document is in fact a “living” document in the sense that its meaning changes over time. Any document means exactly what its author intended it to mean at the time it was written. While interpretations of it can change, and our understanding of its significance may change, its meaning never does. Its actual meaning is fixed for all time by the intent of the author. His words mean just what he intended them to mean.

Accurate interpretation of any text, in other words, is an objective affair, not a subjective one, and requires us to understand the culture of the writer’s day and a working understanding of the knowledge that was possessed both by the author and his intended audience.

To give a simple example. If I write the phrase “I’m going to look into that trunk,” that phrase has a range of possible meanings, depending upon whether I am speaking as a traveler, an automobile mechanic, a telephone repairman, or a squirrel. But the word “trunk” in my expression means exactly what I intend it to mean. If I am writing about the trunk of my car, then that is what the word means in my document. I emphatically do not intend for it to refer to a suitcase, a bundle of telephone lines, or a tree. Authorial intent is the controlling factor.

When I see a brochure advertising a trip to the Holy Land led by “Ancient Near Eastern Scholars,” I do not understand the authors to mean that these tour guides are senile and decrepit, so you better come on our tour before they keel over and die.

When I see a sign that says “Slow – Children at Play,” by “slow” I know that the authors are referring to the speed of my vehicle and not the clumsiness or the intelligence of the kids in the neighborhood. When I see a sign that says, “Sorry – Pumps closed,” I understand “sorry” to refer to an apology and not the condition of the gas pumps.

Interpreting the Constitution just like interpreting the Bible

In simple point of fact, a document either means what its author intended it to mean, or it can mean anything your fevered imagination can invent. This is the exact principle that governs the interpretation of the Bible. In fact, interpreting the Constitution is just like interpreting the Bible. Both documents mean what their authors intended them to mean, period.

For instance, when the Bible says that Jesus physically died on the cross and three days later rose physically from the dead, that’s exactly what it means. When it says he ate fish in the presence of the disciples after his resurrection, and the disciples both saw and touched the wounds in his wrists and in his side after they had seen him die, that’s exactly what it means. Now you may not believe what the authors say, or you may disagree with what they say, or you may think they imagined the whole thing, but intellectual honesty will require you to admit that’s what they said, and that’s what they intended to say.

We’ve probably all heard interpretations of the Scripture that were quite fanciful and even preposterous. For instance, contemporary Bible commentators have twisted themselves into pretzels trying to find a way to maintain that the Scriptures approve of homosexuality, but if we are honest with ourselves we all know that they’re reaching and coming up with interpretations that make hash out of the plain biblical text. After all, there is nothing ambiguous about the verse, “You shall not lie with a male as with a woman; it is an abomination” (Leviticus 18:22). You may wish the Scriptures didn’t teach that homosexuality is a sin but it is foolish and intellectually dishonest to pretend it doesn’t.

I once read about a 19th century cultural observer who watched preachers grapple with Darwin’s newly introduced theory of evolution. As they wrestled with reconciling evolution and Scripture, they turned themselves inside out trying to make the two fit together. Noted the critic, they had a “marvelous gift of explaining things away.” That is, they could take the uncomfortable and counter-cultural things in Scripture, difficult because of modern sensibilities, and maneuver around them through imaginative and fanciful interpretations and reinterpretations of the biblical text. They could make the Bible say what they wanted it to say rather than what God wanted it to say.

When it comes to interpreting the Constitution, the Constitution means exactly what the Founders intended it to mean, no more and no less. “The first and fundamental rule in the interpretation of all instruments,” wrote Story, “is to construe them according to the sense of the terms, and the intention of the parties“(Sec 400).

In Section 451, Story elaborated on that principle:

“In the first place, then, every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research.”

When the Constitution uses the phrase “establishment of religion,” it means exactly what the Founders intended it to mean.  When it refers to the “free exercise” of religion, it means exactly what the Founders intended it to mean. When it refers to the “right of the people to keep and bear arms,” it means exactly what the Founders intended it to mean. When the Constitution uses the word “commerce,” it means exactly what the Founders intended it to mean. We’ll examine each of these in detail as we proceed.

The plain meaning of a plain provision in the Constitution can be so mangled that rulings can restrain what it was intended to protect and permit what it was intended to restrain. For instance, a badly adulterated understanding of the term “establishment” in the First Amendment has resulted in an astonishing and alarming repression of the “free exercise” of religion, which is guaranteed in the same amendment. As Story said, “No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects” (Sec. 428). If the object of the First Amendment is to protect the free exercise of religion, and the Court’s opinions instead severely restrict religious liberty, then the Court is flatly wrong.

Story warned quite directly against enlarging the power of the central government beyond its constitutional limits just because politicians don’t like its restraints. “On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous” (Sec 426). For instance, the power to regulate “commerce” has been extended out of all proportion to the meaning the word had at the time simply because power-hungry big-government types wanted control over every aspect of the American economy.

Antonin Scalia, who was one of the great originalists on the Court, described the proper theory of constitutional interpretation this way: “The theory of originalism … gives it (the Constitution) the meaning that its words were understood to bear at the time they were promulgated … I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” Exactly.


Supreme Court calls for compromise on contraceptive mandate

waving flagBy Sarah Ferris05/16/16

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The Supreme Court on Monday gave the Obama administration a Saved us allfinal chance to work out a compromise with religious groups opposed to the birth control mandate under the Affordable Care Act. In an opinion released Monday, the high court vacated the judgments of the high-profile case, Zubik v. Burwell, and sent it back to lower courts.

The court’s ruling Monday ignores the major question in the case, which is whether religious groups, like Little Sisters of the Poor, have been “substantially burdened” by the ObamaCare mandate.

It also doesn’t decide whether the federal government “has a compelling interest” to enforce the mandate.

Instead, the justices unanimously instructed both parties to find a tweak to the contraceptive mandate to eliminate any faith-based concerns “while still ensuring that the affected women receive contraceptive coverage seamlessly.”

“Given the gravity of the dispute and the substantial clarification and refinement in the two victumspositions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’” the justices wrote in the decision.

The Becket Fund for Religious Liberty, which filed the lawsuit on behalf of Little Sisters of the Poor, called the ruling an “important win”

“The Court has recognized that the government changed its position,” said Mark Rienzi, the lead attorney for the Little Sisters of the Poor. “There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”Complete Message

The Supreme Court had hinted at a way to resolve the dispute without a new ruling.

Shortly after the 90-minute oral arguments on March 23, the justices took the surprising step of asking for an additional briefing. During that time, both the government and the petitioners told the justices they believed they could reach a compromise.

The compromise ultimately reached by the Little Sisters of the Poor and the Obama administration will have a ripple effect across other religious charities, hospitals and institutions that have taken issue with the mandate.

This year’s case on the contraception mandate comes two years after the Supreme Court’s major ruling in Burwell v. Hobby Lobby Stores, which restricted the federal government’s power to require birth control coverage in healthcare plans run by religiously affiliated companies.

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Cartoon: Problems on the Playground

waving flagDrawn and Posted by Glenn Foden / / February 19, 2016

DSig-Feb 18-SCOTUS-Recovered

Kim Holmes wrote earlier this week on the Supreme Court.

The stakes are high—very high. Finding a replacement for deceased Supreme Court Associate Justice Antonin Scalia will be a battle royale. But why should one government official’s position be so existentially important? Yes, control of the Supreme Court hangs in the balance, but that raises the question as to why the Court itself is so powerful. Could it be that the answer to that question tells us something about our increasing inability to govern ourselves as a free people?

Let’s face it. Ever since at least the 1960s (and frankly even before) we have increasingly allowed the Supreme Court to decide controversial issues we have been unwilling to solve legislatively.

From civil rights to abortion to the issue of gay marriage, the high court has ruled on key issues well outside the legislative process. New constitutional rights were created out of whole cloth. If abortion couldn’t be legalized at the ballot box, or if gay marriage could not be made lawful by Congress or the states, a majority of the Supreme Court—a mere five people—would step in and do it for us. Using the power of judicial review, a new policy would be imposed simply by redefining it as a constitutional right.

The practice of judicial fiat is so commonplace we seldom realize how radical it is. We are, quite simply, losing our sovereign power to govern ourselves. We have allowed the courts in general but the Supreme Court in particular to become too powerful.Picture13

We are, quite simply, losing our sovereign power to govern ourselves.

No single government official outside the president should be so important that his or her replacement could shift the course and destiny of the nation. And yet that is precisely the case with finding a replacement for Scalia. No matter which way it goes, the next Supreme Court justice will decide the balance of power of an institution that has arguably become more powerful than the Congress and as powerful (at least) as the presidency.

This was not what the Founders intended. Sure, we live in the modern age where a lot of water has flowed under the bridge of judicial review, but that’s precisely the problem. We have allowed those waters over time to become a flood, swamping in some cases the high court’s main purposes of safeguarding our existing rights and preserving the rule of law.

The irony should not be lost on us that it has been primarily liberal activists who have tried to hijack the court to get by judicial fiat what they could not obtain legislatively. For all their professed love of “democracy”—rule by the people—they have resorted to tactics that actually overturn laws passed legitimately by democratic legislatures.SCOTUS GIANT

The very insularity that the Founders had intended to protect the high court from the political passions of the times now serves those passions outright. It is not uncommon for Supreme Court justices to decide cases based on what they think—perhaps “divine” is a better word—the people or legislators really want. Perhaps based on opinion polls, for example, Associate Justice Anthony Kennedy may have thought he was merely delivering what the people wanted when he decided in favor of gay marriage. But in doing so, he was overturning actual democratic votes that over the past ten years showed a 60.93-percent to 39.07-percent majority against gay marriage when the issue had been placed on the ballot.

Should not actual votes count more than opinion polls?

As I explain in my forthcoming book,The Closing of the Liberal Mind”:

Ultimately judicial activism is harmful not only to constitutional government but to democratic self-governance. When judges try to ram through their policy preferences by contorting texts, abusing precedents, and making up new constitutional rights, they undermine the credibility of both the Constitution and democracy.

That is why, now more than ever, the next Supreme Court justice must be someone who respects not only the original intent of the Constitution—what Scalia called “originalism”—but the need to restrict the policy activist role played by the court. Nothing less is at stake than our ability to govern ourselves as a free people.

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Why Today’s Supreme Court Case on Same-Sex Marriage Matters

waving flagJamie Jackson / / April 28, 2015

So why does this matter? Sarah Torre, a policy analyst at The Heritage Foundation, explains what you need to know about the case.


>>> Don’t Silence the 50 Million Who Voted for One Man-One Woman Marriage

Same Sex Marriage



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Supreme Court Justice Anthony Kennedy says definition of marriage has stood for ‘millennia’

waving flagBy Khalil AlHajal on April 28, 2015, updated April 28, 2015

URL of the Original Posting Site:

Plaintiffs from Michigan April Deboer, left, and Jayne Rowse wave to the crowd as they leave the Supreme Court in Washington, Tuesday, April 28, 2015. The Supreme Court is set to hear historic arguments in cases that could make same-sex marriage the law of the land. The justices are meeting Tuesday to offer the first public indication of where they stand in the dispute over whether states can continue defining marriage as

Update: Supreme Court justices press gay rights lawyer early in highly anticipated marriage arguments

Plaintiffs and attorneys celebrate in front of the Supreme Court in Washington, Tuesday, April 28, 2015, as they exit the court following arguments. The Supreme Court heard historic arguments in cases that could make same-sex marriage the law of the land. The justices met Tuesday to offer the first public indication of where they stand in the dispute over whether states can continue defining marriage as the union of a man and a woman

DETROIT, MI — The Supreme Court justice seen by many as the deciding vote in the nation’s same-sex marriage debate made early comments during highly anticipated oral arguments Tuesday could cause worry among gay rights activists.

Justice Anthony Kennedy said that marriage has been understood as the union of one man and one woman for “millennia-plus time,” according to an Associated Press reporter in the courtroom.

“It’s very difficult for the court to say ‘We know better,'” Kennedy said during gay rights lawyer Mary Bonauto’s presentation of arguments.

The hearing was interrupted at one point by a protester.

Crowd cheers as plaintiffs leave the Supreme Court, in Washington, Tuesday, April 28, 2015. The Supreme Court heard historic arguments in cases that could make same-sex marriage the law of the land.

Five lawyers are expected to spend more than two hours presenting arguments.

Full audio from the session is expected to be released later this afternoon.

The court is considering two specific questions.

The first in relation to cases out of Michigan and Kentucky: “Does the 14th Amendment (equal protection) require a state to license a marriage between two people of the same sex?”

And the second on gay marriage cases out of Tennessee and Ohio: “Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?”

Michigan’s case stems from a 2012 lawsuit filed by a Hazel Park lesbian couple who can’t jointly adopt their four children without a legal marriage. April DeBoer and Jayne Rowse were in Washington for the arguments Tuesday. U.S. Rep. Debbie Dingell (D-Dearborn) planned to host a reception for the couple after the hearings. Legal experts supporting the coupled planned to speak to reporters at 4 p.m.

Same Sex Marriage

Many will be listening for clues from Kennedy and Chief Justice John Roberts to gauge the direction of a ruling expected in June or July.

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Did Anthony Kennedy Just Show His Hand On The Obamacare Subsidies Case?

Posted by Sarah Hurtubise, Reporter, March 23, 2015

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Complete Message

Justice Anthony Kennedy’s comments in a run-of-the-mill budget meeting Monday may have signaled how he intends to vote in this year’s biggest Obamacare lawsuit over the legality of federal premium subsidies.

In a Monday budget request before the House Appropriations Committee, Justice Anthony Kennedy, typically the swing vote on the Court, made comments that could suggest he’s leaning in favor of the plaintiffs in King v. Burwell. The question in the pivotal case is whether the text of Obamacare restricts the law’s popular premium subsidies to state-run exchanges, of which there are only 14, and bans them from the vast majority of states that use the federally-run exchange,

The battle over the lawsuit about Obamacare subsidies currently before the Supreme Court has focused on whether anyone’s got a solution if the Court’s decision ends up skyrocketing premiums.

  • The administration is arguing that the language in the bill doesn’t exclude federal marketplace customers from the subsidies and seems to be trying to convince the Court that ruling otherwise would be catastrophic for the health-care law, and therefore for the Court’s image. Department of Health and Human Services secretary Sylvia Burwell has repeatedly sworn that the administration will not even have a back-up plan prepared in case they lose the case — although anonymous officials have said elsewhere that there is a contingency plan in place.

  • Congressional Republicans, who typically support the plaintiffs’ interpretation that subsidies are for state exchanges only, have countered that tactic by releasing their own plans in the case of a decision eliminating the federal exchange subsidies.

But it may turn out that the Court may choose to not consider the likelihood of Congress restoring the subsidies at all. While he wasn’t overtly discussing King v. Burwell, Kennedy’s comments on Monday certainly suggested that it isn’t the Court’s role to predict what a certain Congress would do in response to their cases.

“We routinely decide cases involving federal statutes and we say, ‘Well, if this is wrong, the Congress will fix it.’ But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes,” Kennedy said Monday. ”That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.”

Court experts immediately grabbed onto the comments, which were in response to a question from Florida GOP Rep. Ander Crenshaw about “politically-charged issues” before the Court, as a likely reference to the furor over King v. Burwell.

Josh Blackman, an assistant professor of law at the South Texas College of Law who specializes in the Supreme Court, points out that strategy to put pressure on the Court due to Congress’s reaction even made its way into the courtroom — much to the chagrin of at least one justice. During oral arguments in the case earlier this month, Solicitor General Donald Verrilli suggested to Justice Antonin Scalia that the current Republican-controlled Congress wouldn’t come up with a fix.

JUSTICE SCALIA: Congress adjusts, enacts a statute that — that takes care of the problem.  It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI:  Well, this Congress, Your Honor, I –­­ I –­­ (Laughter.)

GENERAL VERRILLI:  You know, I mean, of course, theoretically — of course, theoretically they could.

JUSTICE SCALIA:  I ­­– I don’t care what Congress you’re talking about.  If the consequences are as disastrous as you say, so many million people without — without insurance and whatnot, yes, I think this Congress would act.

“It was said in a very snarky or sarcastic way,” Blackman told TheDC about Verrilli’s comments. “I was sitting in the Court and I thought that was inappropriate. I think that’s what Kennedy was referring to here.”

Kennedy made no reference to the case, and Blackman stressed that it’s impossible to know exactly what the justice was thinking. But “he seemed very much directed with how he wanted to handle that question,” Blackman said. “The fact that he said this makes me think this issue is on his mind.”

The Supreme Court’s decision in the case is expected in June.



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