Does Burwell rest on good conservative judicial reasoning?

[Buzz123a]

Here's the heart of the CJ's majority opinion:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

If I had to state the heart of the idea that courts exist not to rewrite laws but to interpret them as Congress intended I couldn't do much better than this. It seems to me this is what Scalia is always bloviating about. Maybe he's the one who's not really acting as a good judicial conservative here; you'd almost think he just doesn't like ACA.

 

[Rockfish1]

Here's the heart of the CJ's majority opinion:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

If I had to state the heart of the idea that courts exist not to rewrite laws but to interpret them as Congress intended I couldn't do much better than this. It seems to me this is what Scalia is always bloviating about. Maybe he's the one who's not really acting as a good judicial conservative here; you'd almost think he just doesn't like ACA.

Hence my frequent references to the Moops. Scalia affects to defer to Congress by reading the law in an absurd way that literally no one read it, thereby gutting it -- while breezily observing that if Congress dislikes having its laws gutted it can always rewrite them, knowing full well that such a thing is politically impossible. Who takes this nonsense seriously?

 

[CO. Hoosier]

Here's the heart of the CJ's majority opinion:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

If I had to state the heart of the idea that courts exist not to rewrite laws but to interpret them as Congress intended I couldn't do much better than this. It seems to me this is what Scalia is always bloviating about. Maybe he's the one who's not really acting as a good judicial conservative here; you'd almost think he just doesn't like ACA.

It's a sound decision

Not sure though that it can be seen as either conservative or liberal. The opinion is pretty much a yawner in terms of adding to the body of law. It is also much more verbose than necessary. i thought it might have been 7-2.

 

[TheOriginalHappyGoat]

It's a sound decision

Not sure though that it can be seen as either conservative or liberal. The opinion is pretty much a yawner in terms of adding to the body of law. It is also much more verbose than necessary. i thought it might have been 7-2.

I'm not entirely convinced it's a complete yawner. I think it could open the door to future scaling back of the applicability of Chevron:

When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid. This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip op., at 19) (quoting Brown & Williamson, 529 U. S., at 160). It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon, 546 U. S. 243, 266–267 (2006). This is not a case for the IRS.
​

I could see this reasoning being used in a wider variety of circumstances to take the job of interpretation out of the hands of agencies and putting it into the hands of the courts.

 

[Rockfish1]

I'm not entirely convinced it's a complete yawner. I think it could open the door to future scaling back of the applicability of Chevron:

When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid. This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip op., at 19) (quoting Brown & Williamson, 529 U. S., at 160). It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon, 546 U. S. 243, 266–267 (2006). This is not a case for the IRS.
​

I could see this reasoning being used in a wider variety of circumstances to take the job of interpretation out of the hands of agencies and putting it into the hands of the courts.

That's an interesting take. As you noted elsewhere, I thought the majority's take on Chevron was that opinion's most striking aspect.

 

[TheOriginalHappyGoat]

That's an interesting take. As you noted elsewhere, I thought the majority's take on Chevron was that opinion's most striking aspect.

I just don't recall them ever using Brown & Williamson in this way. I'm not an admin law expert, but I took a couple of classes in it, and it wasn't that long ago, and this stuck out to me.

Consider this, they could have applied Chevron like normal, come to the conclusion in Step 1 that Congress was unambiguous, and ended up with the same result. So why didn't they? Was it because they couldn't get Kennedy and Roberts on board with a Step 1 decision? Or did they want to make a point to use this case to scale Chevron back a bit.

It could be nothing, but I'll be keeping a sharp eye on any admin law cases going forward. This could especially be interesting in future FCC cases.

 

[Rockfish1]

Again I think you're right. Bear with me on what follows.

Marbury v. Madison may be my favorite Supreme Court case because while it's seminally huge, it's also blatantly political and politically brilliant. At the risk of boring you and others, the case arose out of the Federalists' frantic efforts to maintain control over the federal government after an electoral tidal wave that elected Thomas Jefferson and would effectively kill what we would now think of as the Federalist Party.

As Jefferson's inauguration approached, the Federalists -- specifically including John Adams' then Secretary of State John Marshall -- were frantically signing "commissions" that would empower loyal Federalists to take positions in what would become a Jeffersonian administration. Riders galloped literally into the night to deliver these “midnight commissions”, in a rearguard action to maintain Federalist influence. As it happened, a commission for William Marbury didn't arrive in time, and President Jefferson's Secretary of State, James Madison, refused to honor it. Marbury sued Madison to become a Justice of the Peace, as promised by Marshall's belatedly delivered commission. Hence Marbury v. Madison.

In the short time it took for Marbury's case to reach the Supreme Court, John Marshall had graduated to Chief Justice through the very sort of finagling that had produced the Midnight Commissions that he himself had signed and as to which he would now adjudge. This was, to put it politely, a complicated scenario.

To step back a moment, Marshall wasn't merely a partisan Federalist -- although he surely was that -- he was deeply committed to the idea of a strong federal government. And he believed that without a strong Supreme Court the federal government wouldn't be supreme over the various state governments.

Meanwhile, the fledgling Supreme Court didn't have anything like the clout it possesses today. It really was "the weakest branch", and Supreme Court appointees often declined or never showed up, because the Court was then thought of as an afterthought, and the duties of the then Justices were ignoble, embarrassing, hard, and unappreciated.

Meanwhile there was a huge Jeffersonian blowback at extraordinary Federalist abuses like the Alien and Sedition Acts, which made it a federal crime to say mean things about John Adams and as a result of which Jeffersonian newspaper publishers were sometimes imprisoned. (These Acts were never officially struck down, but no one doubts that they were unconstitutional.) This blowback led to impeachment drives against Federalist judges, some of which were successful, and Marshall understood full well that a target was on his back.

If Marshall granted relief to William Marbury (whose commission he had signed) a furious and vengeful President Jefferson would ignore his decision, Congress would impeach him, and the judiciary might become a merely vestigial branch of the federal government. If he declined Marbury's petition, he'd have to renounce his own actions. So he did neither.

In the first section of the Marbury opinion, Marshall excoriated the Jefferson administration for lawlessly denying Marbury his lawful job. In the second section, Marshall held that the Judiciary Act of 1789 unequivocally granted the federal courts power to right this heinous wrong. But in the third section – and this is where it all happens – Marshall held that the 1789 Judiciary Act was unconstitutional, because it gave the Supreme Court too much power. As a result, Marshall held, he had no choice but to dismiss Marbury’s claim, because the statute under which he’d filed it was unconstitutional.

Look at what just happened here. In the guise of quiescently abdicating the authority to grant Marbury relief, Marshall has just struck down a federal statute as unconstitutional. (It had never happened before and wouldn’t happen again for decades.) While I think the Supreme Court absolutely has the authority to do this, there isn’t a single provision of the Constitution that expressly says so, and Marshall knew it. While encouraging everyone to focus on the politics of his decision, he distracted attention from his decision’s huge judicial consequences.

I say all of this because John Roberts has read Marbury and may be doing exactly what you suggest.

 

[Buzz123a]

Again I think you're right. Bear with me on what follows.

Marbury v. Madison may be my favorite Supreme Court case because while it's seminally huge, it's also blatantly political and politically brilliant. At the risk of boring you and others, the case arose out of the Federalists' frantic efforts to maintain control over the federal government after an electoral tidal wave that elected Thomas Jefferson and would effectively kill what we would now think of as the Federalist Party.

As Jefferson's inauguration approached, the Federalists -- specifically including John Adams' then Secretary of State John Marshall -- were frantically signing "commissions" that would empower loyal Federalists to take positions in what would become a Jeffersonian administration. Riders galloped literally into the night to deliver these “midnight commissions”, in a rearguard action to maintain Federalist influence. As it happened, a commission for William Marbury didn't arrive in time, and President Jefferson's Secretary of State, James Madison, refused to honor it. Marbury sued Madison to become a Justice of the Peace, as promised by Marshall's belatedly delivered commission. Hence Marbury v. Madison.

In the short time it took for Marbury's case to reach the Supreme Court, John Marshall had graduated to Chief Justice through the very sort of finagling that had produced the Midnight Commissions that he himself had signed and as to which he would now adjudge. This was, to put it politely, a complicated scenario.

To step back a moment, Marshall wasn't merely a partisan Federalist -- although he surely was that -- he was deeply committed to the idea of a strong federal government. And he believed that without a strong Supreme Court the federal government wouldn't be supreme over the various state governments.

Meanwhile, the fledgling Supreme Court didn't have anything like the clout it possesses today. It really was "the weakest branch", and Supreme Court appointees often declined or never showed up, because the Court was then thought of as an afterthought, and the duties of the then Justices were ignoble, embarrassing, hard, and unappreciated.

Meanwhile there was a huge Jeffersonian blowback at extraordinary Federalist abuses like the Alien and Sedition Acts, which made it a federal crime to say mean things about John Adams and as a result of which Jeffersonian newspaper publishers were sometimes imprisoned. (These Acts were never officially struck down, but no one doubts that they were unconstitutional.) This blowback led to impeachment drives against Federalist judges, some of which were successful, and Marshall understood full well that a target was on his back.

If Marshall granted relief to William Marbury (whose commission he had signed) a furious and vengeful President Jefferson would ignore his decision, Congress would impeach him, and the judiciary might become a merely vestigial branch of the federal government. If he declined Marbury's petition, he'd have to renounce his own actions. So he did neither.

In the first section of the Marbury opinion, Marshall excoriated the Jefferson administration for lawlessly denying Marbury his lawful job. In the second section, Marshall held that the Judiciary Act of 1789 unequivocally granted the federal courts power to right this heinous wrong. But in the third section – and this is where it all happens – Marshall held that the 1789 Judiciary Act was unconstitutional, because it gave the Supreme Court too much power. As a result, Marshall held, he had no choice but to dismiss Marbury’s claim, because the statute under which he’d filed it was unconstitutional.

Look at what just happened here. In the guise of quiescently abdicating the authority to grant Marbury relief, Marshall has just struck down a federal statute as unconstitutional. (It had never happened before and wouldn’t happen again for decades.) While I think the Supreme Court absolutely has the authority to do this, there isn’t a single provision of the Constitution that expressly says so, and Marshall knew it. While encouraging everyone to focus on the politics of his decision, he distracted attention from his decision’s huge judicial consequences.

I say all of this because John Roberts has read Marbury and may be doing exactly what you suggest.

Terrific summary of what's also my favorite USSC decision, Rock.

As to Roberts, I've been spending a lot of time lately wondering what his game is, if there is a game. I certainly think he's trying to protect and conserve the court's little remaining credibility, though for what I don't know: if he's prepared to let ACA and gay marriage skate to save it, what's he saving it for?

I'm beginning to wonder if this isn't an Earl Warren thing: maybe those who appointed and cheered him in the beginning just didn't completely get who he was. I know I certainly liked what he said in Burwell; I probably would have written something a lot like it in his shoes.

 

[TheOriginalHappyGoat]

Terrific summary of what's also my favorite USSC decision, Rock.

As to Roberts, I've been spending a lot of time lately wondering what his game is, if there is a game. I certainly think he's trying to protect and conserve the court's little remaining credibility, though for what I don't know: if he's prepared to let ACA and gay marriage skate to save it, what's he saving it for?

I'm beginning to wonder if this isn't an Earl Warren thing: maybe those who appointed and cheered him in the beginning just didn't completely get who he was. I know I certainly liked what he said in Burwell; I probably would have written something a lot like it in his shoes.

Roberts is supposedly concerned with both his own and the court's legacy, according to insiders. It's why he claimed to be hesitant to be involved in sweeping decisions. But he seems to be shifting on that. I don't think he's saving it for anything, and I think he's still a conservative. But I don't think he's a partisan the way Scalia is, and I think you're probably right that people misjudged him when he was nominated.

 

[Rockfish1]

Terrific summary of what's also my favorite USSC decision, Rock.

As to Roberts, I've been spending a lot of time lately wondering what his game is, if there is a game. I certainly think he's trying to protect and conserve the court's little remaining credibility, though for what I don't know: if he's prepared to let ACA and gay marriage skate to save it, what's he saving it for?

I'm beginning to wonder if this isn't an Earl Warren thing: maybe those who appointed and cheered him in the beginning just didn't completely get who he was. I know I certainly liked what he said in Burwell; I probably would have written something a lot like it in his shoes.

When I was in college we played a lot of euchre. My partner and I engineered an adjustment to the rules, through deflection, cheating, and others' drunkenness. Here's how it worked:

While everyone was chatting about the last hand, one of us would push the played cards to the other, while commencing a funny, outrageous, or otherwise distracting story while the other inobtrusively finalized the now shuffled deck for the next hand. That partner would push back to the other, who'd thank him for readyng the deck. He'd then propose the resulting deck to be cut, but since it was a friendly drunken game this would waved off, and the pushed partner's deal would begin, while the other continued some stupid distraction, so the others focused elsewhere. If all this bullshit worked, no one had any idea whose deal it was.

After we were caught stealing the deal many times it was decided that Steal the Deal should be an approved rule. If your side could steal the deal through an offered cut and the first dealt card, it was your deal.

In Marbury John Marshall deployed all of these techniques (and more) to steal the deal for the Supreme Court.

 

[NPT]

But I don't think he's a partisan the way Scalia is.

I think Roberts and Kennedy are the only two on there that aren't a partisan.

 

[Buzz123a]

I think Roberts and Kennedy are the only two on there that aren't a partisan.

That's because you don't know what you're talking about, N. Nobody other than the knuckle-draggers of the idealogical Right thinks any of the 3 women is partisan. All share a basic judicial philosophy, which is to construe the guarantees of individual rights broadly, but no reasonable person would find that objectionable.

Unlike Scalia, whose result-oriented jurisprudence is generally on full display, decisions in which the Notorious RBG, Kagan or Sotomayor even reasonably arguably decided where they wanted to go first and then started casting about for a way to get there are really tough to find, not to say impossible. Trust me on this, I've looked.

 

[hoot1]

The dilemma for me is that the USSC is determining the intent of a Congress whose political makeup has changed dramatically in just a few years. Thus the intentions of the majority in Congress which passed the law are no longer the intentions of the present majority.

Usually sweeping laws such as ACA have the kinks worked out over time and become uncontroversial among politicians and constituents. This hasn't happened to date with ACA. This leaves many Americans simply unhappy with all branches of the federal government.

I don't think the latest USSC decision will change this. Pols are already ranting about the court decision, and thus are adding to a discontent which already exists. The expanding length of the presidential race season only adds to the misery index.

 

[NPT]

All share a basic judicial philosophy, which is to construe the guarantees of individual rights broadly, but no reasonable person would find that objectionable.

Yep, except when they want to interpret it narrowly like in the right to bear arms and then they would take that away if they could.

 

[Buzz123a]

Yep, except when they want to interpret it narrowly like in the right to bear arms and then they would take that away if they could.

As usual, sweeping assertions sans either evidence or argument. Still the way you roll, I guess. You should do some research re the existence of gun control rules in revolutionary America; I think you'd find your findings surprising.

 

[CO. Hoosier]

That's because you don't know what you're talking about, N. Nobody other than the knuckle-draggers of the idealogical Right thinks any of the 3 women is partisan. All share a basic judicial philosophy, which is to construe the guarantees of individual rights broadly, but no reasonable person would find that objectionable.

Unlike Scalia, whose result-oriented jurisprudence is generally on full display, decisions in which the Notorious RBG, Kagan or Sotomayor even reasonably arguably decided where they wanted to go first and then started casting about for a way to get there are really tough to find, not to say impossible. Trust me on this, I've looked.

Obama thought Sotomayor was biased; that is why he nominated her

"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers . . . is a necessary ingredient in the kind of justice we need on the Supreme Court,"
​

There are few if any circumstances where an appellate judge, let alone a supreme court justice, should draw on personal experience when deciding cases. On the other hand, CJ Roberts said the role of a Supreme Court justice is to objectively call balls and strikes. Obama voted against Roberts. Obama, the constitutional scholar, is also on record as saying the constitution is an impediment to providing full economic justice. Sotomayer has not disappointed Obama.

 

[Buzz123a]

Obama thought Sotomayor was biased; that is why he nominated her

"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers . . . is a necessary ingredient in the kind of justice we need on the Supreme Court,"
​

There are few if any circumstances where an appellate judge, let alone a supreme court justice, should draw on personal experience when deciding cases. On the other hand, CJ Roberts said the role of a Supreme Court justice is to objectively call balls and strikes. Obama voted against Roberts. Obama, the constitutional scholar, is also on record as saying the constitution is an impediment to providing full economic justice. Sotomayer has not disappointed Obama.

You're a pitiful fool, George, as usual: noting that a nominee had actual experience living the way most of us do, and some empathy for ordinary people, isn't evidence of bias, if you know if you hadn't turned off your brain long ago.

 

[CO. Hoosier]

You're a pitiful fool, George, as usual: noting that a nominee had actual experience living the way most of us do, and some empathy for ordinary people, isn't evidence of bias, if you know if you hadn't turned off your brain long ago.

Um

No that isn't evidence of bias, until she is encouraged to apply that experience. Might be okay for a trial judge who must decide the facts of the case, but an appellate judge? I don't think so.

 

[Buzz123a]

Um

No that isn't evidence of bias, until she is encouraged to apply that experience. Might be okay for a trial judge who must decide the facts of the case, but an appellate judge? I don't think so.

So you're saying appellate judging is a sterile exercise, divorced from the effect of the laws in question on the people involved? Yikes, no wonder people have such a low opinion of us.

 

[Ladoga]

As usual, sweeping assertions sans either evidence or argument. Still the way you roll, I guess. You should do some research re the existence of gun control rules in revolutionary America; I think you'd find your findings surprising.

OK, Buzz. You are the smartest fish in the pond. Why did Congress put those four words "established by the state" in the law 7 times if it meant nothing. If that phrase hadn't been in the law, there would have been no case. This court said it was following the intent of the law. However, it took a 4 word phrase which appeared 7 times in the act and essentially removed them from the law - identical to amending it.

As totally apologist for everything left as you are, even you can't argue that they did anything other than effectively amending the bill to remove that phrase from the law.

 

[hoot1]

OK, Buzz. You are the smartest fish in the pond. Why did Congress put those four words "established by the state" in the law 7 times if it meant nothing. If that phrase hadn't been in the law, there would have been no case. This court said it was following the intent of the law. However, it took a 4 word phrase which appeared 7 times in the act and essentially removed them from the law - identical to amending it.

As totally apologist for everything left as you are, even you can't argue that they did anything other than effectively amending the bill to remove that phrase from the law.

Seems to me "the state" can mean either a state or the federal government. However, when reading the rest of the law it becomes obvious, to a majority on the court, that the phrase refers to insurance exchanges established by either a state or a federal agency. If it had meant only states shouldn't it read, "established by the states" ?

 

[CO. Hoosier]

So you're saying appellate judging is a sterile exercise, divorced from the effect of the laws in question on the people involved? Yikes, no wonder people have such a low opinion of us.

Buzz, you used to be much better than this

Seems like you are writing for an elementary school reader. Disparate impact cases indeed suggest that judges consider the effect of laws on people involved. There are other examples. But that is not to say that judges must always apply the effect of laws on people involved, in fact it might error to do so. Lady justice wears a blindfold for a reason. When a judge is deciding whether McDonalds is liable for burns from hot coffee, the parties are equal and the judge does not show sympathy or empathy for either party.

 

[Buzz123a]

OK, Buzz. You are the smartest fish in the pond. Why did Congress put those four words "established by the state" in the law 7 times if it meant nothing. If that phrase hadn't been in the law, there would have been no case. This court said it was following the intent of the law. However, it took a 4 word phrase which appeared 7 times in the act and essentially removed them from the law - identical to amending it.

As totally apologist for everything left as you are, even you can't argue that they did anything other than effectively amending the bill to remove that phrase from the law.

We already know that, L: the bill was drafted in a rush, and oner of its most knowledgeable proponents died during the process. It was unquestionably a poorly drafted bill, and the use of that language is one of the poorer parts.

I can, however, argue that the court didn't amend the bill, using non-controversial rules of statutory construction taught to 1Ls in all US law schools, with which even Nino Scalia would have no quarrel if asked about them in the abstract. Examination of both the text and the structure of ACA makes clear that the drafters intended subsidies to be available to any purchaser under the statute, and that absent such availability the statute was not workable.

Probably the single most basic rule of statutory construction is that its not permissible to take a particular piece of statutory language and construe it in isolation; instead, construing any statutory text in context, by reference to the purpose of the statute, is required. Scalia and those who see things his way simply ignored that requirement.

Just about as fundamental is that a court is required, in construing any statute, to try to discern the legislative intent, and to effectuate that intent if there's a way to do so. It was established during the litigation that the construction adopted by Scalia would cause the statute to fail of its one of its primary purposes, to extent the benefits of health insurance to low-income Americans who didn't have health insurance as an employee benefit. Thus it was incumbent on the courts dealing with the case to construe the statute so as to accomplish that legislative purpose if that could reasonably be done.

I'm way less left than you probably assume, L, though much less right than I once was, due in part to the increasing radicalism of the party for which I spent most of my adult life working. But that's all by the bye, since my view of this is based on my understanding of the applicable law, not on my policy or political preferences. You can take my word for this if you wish, or do the homework yourself if you'd rather, but this just wasn't a hard case, and serious legal commentators and analysts didn't treat it as one. The correct answer was always obvious, and no objective lawyer or legal scholar ever thought anything else.

Look at the CJ's opinion, bearing in mind that John Roberts is nobody's liberal: he obviously thought the case a throwaway, not requiring or deserving much intellectual effort. He got it right.

 

[Buzz123a]

Buzz, you used to be much better than this

Seems like you are writing for an elementary school reader. Disparate impact cases indeed suggest that judges consider the effect of laws on people involved. There are other examples. But that is not to say that judges must always apply the effect of laws on people involved, in fact it might error to do so. Lady justice wears a blindfold for a reason. When a judge is deciding whether McDonalds is liable for burns from hot coffee, the parties are equal and the judge does not show sympathy or empathy for either party.

You got it; I'm writing for you, at a level I think you can handle. Maybe.

 

[Rockfish1]

We already know that, L: the bill was drafted in a rush, and oner of its most knowledgeable proponents died during the process. It was unquestionably a poorly drafted bill, and the use of that language is one of the poorer parts.

Here is the best reporting I've seen on how the statutory language came to be. It was a big, complicated bill with lots of moving parts that were combined from proposals on different tracks, and when Democrats lost their filibuster-proof majority, the conference committee that would have polished the amalgamation became impossible. The result, as you say, was a bill that included some sloppy drafting.

The Burwell challengers cynically sought to exploit this common feature of sausage-making, with their absurd Moops arguments. It's appalling (but not surprising) that three Supreme Court justices took it seriously.