Judge Posner Offers “Simpler and Cruder” “Cynical” Response to Abbe Gluck on CJ Roberts in King v. Burwell

Harvard Law Review Forum:

Pofessor Abbe Gluck is far more steeped in the scholarly literature on statutory interpretation than I, and far more familiar with the workings of Congress than I, including the specific legislative process that generated the provision of the Affordable Care Act that was at issue in King v. Burwell. It would be an impertinence, therefore, for me to criticize her Comment, and I have no inclination or intention to do so. But I do have experience in judicial interpretation of statutes, being a judge, and I do have my own ideas about statutory interpretation, and they differ somewhat from Professor Gluck’s. They differ in being simpler, cruder — and cynical. And being simpler and cruder, they can be set forth with considerable brevity….

I don’t know Chief Justice Roberts; I am not privy to his thinking. I suppose it’s possible that his decision in the King case was the product of protracted rumination on the academic and other extrajudicial literature on statutory interpretation — the works of H.L.A. Hart and Henry Hart and William Eskridge and John Manning and Felix Frankfurter and Learned Hand and Antonin Scalia and countless others, including Professor Gluck — but I am dubious.


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