When I was a young man I recall some discussion—today it would be Internet buzz—about how writing didn’t matter anymore. We all talked to one another, and that made writing unnecessary.
Wrong! Writing matters greatly, almost always. Very recently, I got a decision in a case. My clients were right on both the facts and the law; however, the case was complicated. I filed a motion for summary judgment. It’s a request to the court, asking the court to accept the other side’s version of the facts and still rule in your side’s favor, on account of the law being on your side.
My clients prevailed. The right decision, although I was concerned until I got the ruling, as I’m not always at my best, on my feet, arguing on behalf of my clients. I think the writing ruled in the case!
I bring up writing because I have been watching King v. Burwell, No. 14-114, for a while, and because the oral argument occurred on Wednesday, March 4, 2015. (For anyone not paying attention, King v. Burwell is the challenge du jour to the Patient Protection and Affordable Care Act of 2010 aka Obamacare.)
The parties to this action filed their requisite opening, responsive, and rely briefs, and friends of the Court filed almost 60 amicus curiae briefs. Alas, it looks like the oral argument may have actually carried the day!
The silver medal—meaningless, truly, in the “winning is everything” world—goes to this exchange between Solicitor General Donald Verilli and Justice Antonin Scalia:
JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the, – you know, the bankruptcy court decision? Congress adjusts, enacts a statute 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 (Laughter.) You know, I mean, of course, theoretically of course, theoretically they could.
JUSTICE SCALIA: I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without insurance and whatnot, yes, I think this Congress act.
(Before I move on to the gold medal winner, who knew Justice Scalia was not residing in Reality? Congress will fix this? Can he not hear the voices from across the street?)
And the gold medal winning exchange?
JUSTICE KENNEDY: Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance markets into a death spiral. We’ll have people pay mandated taxes which will not get any credit on the subsidies. The cost of insurance will be sky high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail, in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument
CARVIN: Two points, Justice Kennedy. One is the government’s never made that argument. Number two, I’d to think —
JUSTICE KENNEDY: Sometimes we think of things the government doesn’t.
Time will tell in this most critical case (and I’ll be here, G-d willin’ and the creek—and that’s crick to you and yours—don’t rise, to report on this important case), but my money is on the government, and with a likely 6-3 vote, with Justice Anthony Kennedy writing for a majority which includes the four liberal justices, Kennedy, and Chief Justice Roberts. Justice Kennedy is hardly an ACA supporter, but he’s also a man who favors states in the federal-state dynamic, he’s a man who like solutions, and I think it’s very hard to make the point he made in the quoted exchange and say “never mind” later.
And, for this blog post? Never sell short what may come unexpectedly from a judge in an oral argument.