Judicial Activism of Supreme Court Undermines American Democracy

This week, the United States Supreme Court displayed a contempt for Congress and state legislatures that is probably unprecedented in the history of this country.

In King v. Burwell, the Court considered a provision in the Affordable Car Act which provided for a premium tax credits when an individual is enrolled in an insurance plan through an "Exchange established by the State."  In a 6-3 decision, the Court rewrote the provision to "Exchange established by the State or the Federal Government."

There are rules associated with interpreting statutes.  One of those rules is that in order to look at

Chief Justice John Roberts

statutory construction and legislative purpose to interpret a provision, one first must find that a provision is ambiguous and, thus, in need of clarification.  Chief Justice Roberts, writing for the majority, goes to astonishing lengths, including ignoring the statutory definition included in the ACA, to conclude that the phrase "Exchange established by the State" is ambiguous.

Armed with a far-fetched declaration of ambiguity, Roberts then proceeds to rewrite the provision. Although the majority suggests the phrase is a mere drafting error resulting from details of the bill being written behind closed doors instead of through the normal give and take legislative process, the fact is that same phrase, "Exchange established by the State" appears throughout the document as does the term "Exchange" which applies to those both state and federally created exchanges.  It is not the job of courts to rewrite inartfully drafted legislation.

Justice Scalia pens an outstanding dissent, schooling the majority on how the rules of statutory construction work.   Even though the lack of ambiguity in the questioned provision could have ended Scalia's analysis, he goes on to explain even if there is ambiguity, there are obvious reasons why  Congress may well have intended that "Exchange established by State" means exactly that.

Scalia details the choices the respective legislative bodies could have made had the Supreme Court not decided to shed their judicial robes for legislative suits:

Rather than rewriting the law under the pretense of interpreting it,  the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges. If Congress values above everything else Act’s applicability across the country, it could make tax credits available in every Exchange. If it prizes state involvement in the Act’s implementation, it could continue to limit tax credits to state Exchanges while taking other steps to mitigate the economic consequences predicted by the Court. If Congress wants to accommodate both goals, it could make tax credits available everywhere while offering new incentives for States to set up their own Exchanges. And if Congress thinks that the present design of the Act works well enough, it could do nothing. Congress could also do something else altogether, entirely abandoning the structure of the Affordable Care Act. The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude. King v. Burwell is the third time now that the U.S. Supreme Court has rewritten provisions to accord with what a majority believed to be Congress' intent in passing the ACA.  The case represents a dangerous trend of judicial activism and in particular judges refusing to defer to legislative bodies in order to act as a super legislature with limitless power to rewrite legislation.

The trend of the Supreme Court relinquishing their judicial robes to enact what a majority believes is "good policy" was evident in today's marriage equality case, Obergefell v. Hodges.  In that case, the 5-4 majority, in an opinion written by Justice Kennedy, decided that the 14th Amendment's Due Process and Equal Protection Clauses protect the right of same sex couples to marry.  

Are we supposed to believe that the between 1847 and 2005 when Massachusetts became the first state to legalize same sex marriage, that every state in the union violated the 14th Amendment by only allowing marriage between a man and a woman?  What the majority did in Obergfell was, via the dictates five black-robed justices, reinterpret the Constitution to include a certain preferred policy position.  In doing so, the Court was acting as a super legislature subverting democratic self-government by usurping the role of state legislatures in defining marriage. 

Justice Anthony Kennedy

Certainly the public was rapidly toward same sex marriage were rapidly changing.  Those changing views were increasingly being recognized as legislative bodies were increasingly extending the definition of marriage to include a union between same sex couples  Yet our Federal Super Legislature, aka the United States Supreme Court, couldn't wait for the democratic process to play out.  Yet that process is critical for reaching consensus on contentious policy questions in this country.  If you think not, consider the never healed wounds that resulted from the Court deciding the Constitution mandated in Roe v. Wade that states allow abortion on demand.

Judges need to know their place.  They are not legislators. They are not on the bench to rewrite legislation or to substitute their policy preferences for that of representatives elected by the people.  Just as importantly, the result-oriented judging that is currently taking place at every level of the judiciary needs to cease.  Too often judges find a result they want, and then disingenuously go about twisting statutes, the Constitution and case law to get the result they wanted.  Burwell is the perfect example of that practice.  Rules of statutory construction are not liberal or conservative and they are extremely well-known Yet the justices in the majority were willing to ignore them in order to reach the conclusion they wanted.  Inexcusable.

Liberals should not celebrate judicial activism. Judicial activism transcends political philosophy.  It could well be that a Republican elected President in 2016 makes several appointments to the Supreme Court that tips the majority to the conservative side. Imagine those conservative justices shedding their previous advocacy of judicial restraint and deference to the legislature to enact a conservative political agenda through judicial fiat.  It's hard to feel sorry for liberals if that happens. After all, that is the judiciary they wanted.