With the Supreme Court scheduled to hear oral argument inKing v. Burwell next week, those looking for clues as to what the Court will decide later this year when it rules inKing need look no further than a very different case the Court decided today. In Yates v. United States, the Court held, in a fractured 4-1-4 decision, that a provision of the Sarbanes-Oxley Act that bars the destruction of “tangible object[s]” does not apply to the destruction of fish (specifically, red grouper). In their opinions in Yates, the plurality and the dissent didn’t agree about much, but there’s one thing they did agree on, and that principle is key to why the government should win in King: when you’re interpreting a law, context matters.
In King, the Court has been asked to decide whether the tax credits that put the “affordable” in the Affordable Care Act are available to all Americans who meet the income criteria, or only to those who purchase their insurance on state-run Exchanges. When one looks at the whole statute in King, the answer is clear: tax credits are available to all Americans who qualify based on income, regardless of whether they purchase insurance on a state-run or a federally-facilitated Exchange. The argument made by the law’s challengers rests on a facile reading of four words—“established by the State”—that appear in the formula for calculating the amount of the tax credit (not eligibility for it), as well as the argument that one need not look any further than those four words when trying to understand what the statute means. Today’s opinion in Yates makes clear how wrong those arguments are.
I disagree, and think that Yates tells us nothing in how the Court will rule in the Obamacare challenge. I say this for two reasons.
First, the general principles of statutory interpretation discussed by the Court (with the exception of the question of reliance on legislative history) are accepted, on at least a superficial level, by all nine Justices. Consider, for example, the rule that courts should read statutes in context. Here is what Justice Kagan in dissent says on this point: “That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes.” “Really, who does not?” indicates the problem. There are enough different rules of statutory interpretation that can push or pull in a case like Yates or King that stating the general principle does not bind any Justice to decide a case one way or another.
Second, most cases in most courts, including most cases at the Supreme Court, involve issues where precedent (and sometimes accepted means of interpretation) are a very good predictor of how a court will rule. That is, in many cases, judges (and Justices) do their best to apply close precedent to issues before the Court. (It is less true that means of interpretation are seen as precedential, but that’s not my main point). But in a small class of cases with a very strong ideological valence, you can throw the usual rules of interpretation out the window. The Justices are much more likely in these cases to be (subconsciously?) swayed by their ideological commitments, world view, and consideration of the consequences of a ruling than by application of earlier precedent.
I would not be surprised in the King case if both the majority and dissent cite Yates to support their side’s argument. But if anyone really thinks any Justice’s vote in King v. Burwell will depend upon what the Court did in Yates, I’d be very, very surprised.