Institutions of government are inherently political


For those of us clear-eyed (and arrogant) enough to consider ourselves judicial realists, it’s an incredible sight to see long-time New York Times Supreme Court reporter Linda Greenhouse come around to what has long been self-evidently true about the Court and its members:

That’s not the case here. There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.

Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriagecases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.

There is simply no way to describe what the court did last Friday as a neutral act.

So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

The difference between Congress voting 50 ineffectual times to repeal Obamacare and the Supreme Court deciding the wording that, just two years ago, they unanimously affirmed as allowing federal subsidies doesn’t actually do that, is that the Court faces effectively no limits on its exercise of power.

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