The "Umpire-in-Chief?" Not Yesterday, Today, or Tomorrow

by Eric Segall

Chief Justice Roberts’ opinion for six Justices in yesterday’s huge Obamacare decision King v. Burwell was important, well-written and persuasive, but it still doesn’t make him the “Umpire-in-Chief.”

If you are reading this blog, then you probably remember that during his confirmation hearings John Roberts said the following: “Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

In addition to the fact that only those who are very well-connected to the Court, or are willing to stand in long lines in Washington, D.C., get to actually “see” the Supreme Court, this analogy between Justices and umpires is wildly misleading. As many have pointed out before me, the Justices of the Supreme Court often do make up the rules of the game. Asking them to interpret what “due process” or “equal protection” or “establishment” means is virtually the same thing as asking them to decide what is fair, what is equal, and where is the boundary between church and state, in other words, the “rules.” And, the Justices’ decisions on these kinds of rules are virtually unreviewable, as only a constitutional amendment can change them, and that just about never happens.

Yesterday’s King v. Burwell is a bit different, but just a bit. When the Court is called upon to resolve a dispute involving the meaning of a federal statute, Congress can overturn that decision by passing a new law. This actually happens from time to time but does that make the Justices more like umpires? Of course not, and King v. Burwell makes that point dramatically.

Even though I wrote here and here and here that the law governing the case was clear, and if law mattered the plaintiffs had to lose, the truth is that the Court could have gone either way in the case because the Justices have that much discretion. There are no instant replays and there are no do-overs. Although the six Justices, led by the Chief, accepted the rather obvious argument that Congress told us exactly what would happen if states didn’t create their own exchanges (the feds had to create the same exchange), two of them could have joined with the three dissenters to say that an exchange “established by the state” means exactly (or only) that, and thus subsidies weren’t available there. Although I think the dissent is far less persuasive than the majority for all the reasons Mike wrote about yesterday, Professor Jonathan Adler, among many other smart people, thinks exactly the opposite. The key point is that the Justices could have written either opinion because they do get to make the rules. Had the Court sided with the plaintiffs, maybe Congress would have changed the law to offer the subsidies, but it was more likely pigs would fly.

Justice Oliver Wendell Holmes famously said: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” This is a vast overstatement because much of “the law” is clear and obvious. We know we have to stop at red lights, pay our taxes, and not rob the local (if there is one left) bank. But, when it comes to the decisions of the United States Supreme Court, Holmes was exactly right.

Although many of us were gratified by yesterday’s decision, and some of us suggested this was one of the easier cases as a matter of legal reasoning to reach the Court, it is also a good day (now that it is the day after) to remember this is a Supreme Court (and a Chief Justice) who gutted the Voting Rights Act based on an overtly misleading summary of the facts and a sub silento overruling of a previous decision. This is also a Court that twice said that pregnancy discrimination is not discrimination based on gender (really), and for almost 60 years held that separate and obviously unequal public schools did not violate the equal protection clause.

When talking and writing about the Supreme Court, especially its high profile cases like King v. Burwell, it is imperative to remember Holmes’ admonition. Although legal materials like text and prior cases do count, so do politics, values, and life experiences. Yesterday, all those factors came together in a way many of us approve. Tomorrow, they may not, and that is why, even in easy legal cases like King v. Burwell, they have to play the game before we know how it will all come out.