Quips about Washington, D.C. being “surrounded by reality” date back several decades, but the New Yorker’s Jeff Shesol now has suggested that a special kind of unreality in the nation’s capital is found in the Supreme Court building. Shesol claimed in a Wednesday post that when the SCOTUS agreed to hear King v. Burwell, it showed that “most or maybe all of the Court’s Republican appointees will entertain any argument, no matter how silly, that can derail or dismember the supposed abomination that is Obamacare.”
Shesol, a White House speechwriter during Bill Clinton's second term, asserted that “King, more than most [SCOTUS cases], has an ersatz, inorganic quality, like something cooked up in a lab. That is, of course, because it was—by the [Competitive Enterprise Institute] and other crusading, close-reading conservative attorneys…Increasingly, the conservatives’ view seems to be that every crackpot idea—if developed by right-thinking crackpots—deserves its day in court, especially the nation’s highest court.”
From Shesol’s piece, headlined “The Supreme Court vs. Reality” (bolding added):
Less than three years have passed since the A.C.A. survived its first existential threat before the Court…[and] here we are again, plumbing the pages of the law for another potentially fatal weakness—in this instance, a four-word phrase (“established by the State”) that, if your squint your eyes, turn the text sideways, and look at it through a lens provided by the lawyers at the Competitive Enterprise Institute, could theoretically, but hardly plausibly, be said to render seven and a half million Americans ineligible for the federal subsidies that enable them to be insured through the A.C.A.
Few cases simply “find” their way to the Supreme Court—they are incubated, hatched, nudged along. But King, more than most, has an ersatz, inorganic quality, like something cooked up in a lab. That is, of course, because it was—by the C.E.I. and other crusading, close-reading conservative attorneys. Their selection of plaintiffs who have plainly suffered no harm from the A.C.A. suggests an experiment gone awry—or, perhaps, an assuredness that most or maybe all of the Court’s Republican appointees will entertain any argument, no matter how silly, that can derail or dismember the supposed abomination that is Obamacare...
…Increasingly, the conservatives’ view seems to be that every crackpot idea—if developed by right-thinking crackpots—deserves its day in court, especially the nation’s highest court.
Of course, statutory and constitutional interpretations tend to rest on the meaning—often obscure or ambiguous—of a single word or a phrase (“equal protection,” “cruel and unusual”). But the four words at issue in King are ambiguous only if considered in a vacuum, in an airless chamber…
That mindset is not unique to this set of judges; history shows that it is an occupational hazard. In one New Deal-era case, Justice George Sutherland—the architect of most of the conservative rulings of the nineteen-twenties and thirties—described the Great Depression as “nothing new,” just another cyclical downturn that would end as soon as debt-ridden Americans exercised some “self-denial”… Much more recently, in 2007, there was Parents Involved, a school desegregation case most memorable for Chief Justice Roberts’s blithe assurance that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—an epigram worthy of Wilde, or Yoda, but revealing little awareness of what it takes to desegregate a school district.
…Some Justices, sometimes, may simply be oblivious to the real effects of their decisions; others may be oblivious when it suits them to be…[I]n 1937, Chief Justice Charles Evans Hughes rebuked his conservative colleagues for their willingness to “shut [their] eyes to the plainest facts of our national life.” We will get an idea at the oral argument for King which of our present Justices, if any, will shut their eyes.
