That John Gruber is guilty of the crime of Candor in the First Degree is not a matter for the Supreme Court. However, his remarks do highlight the dangerous hubris of those that are ‘smarter’ and ‘know what’s best.’
It is because of this foolish confidence that there is a subtle and profound collision coming between one man who ‘knows best’ and another who reveres centuries old wisdom and institutions when the Supreme Court hears King v. Burwell next year.
In 2012, Chief Justice Roberts demonstrated a reverence for the institution he served in a way that was as powerful as it is misunderstood. Mr. Roberts was acutely aware of the partisan vote in Bush v. Gore and of President Obama’s undermining of the stature of the Supreme Court during and after his 2010 State of the Union Address, in addition to the fact that at the time, only 36% of Americans had a 'great deal/quite a bit' of confidence in the Supreme Court as an institution (Gallup).
Justice Roberts knew that the constitutional order requires that the Court be, to the greatest extent possible, above politics and be perceived by the public as such. Taking the long view of the interests of the Court and of the nation, he voted to uphold the Affordable Care Act using interesting, if not tortured, reasoning.
Now, it appears as though the foresight of John Roberts is about to come full circle.
In voting with the liberal wing to uphold the ACA, Roberts avoided the negative political fallout for Republicans –and possibly long term damage to the Court and the country — by NOT striking down President Obama’s signature achievement in an election year.
Now that they've decided to hear King v Burwell, the Supreme Court will review the case on legal grounds far less ideologically charged. In King, the Court will review a key provision of the ACA as a matter of statutory construction. Those who would have struck down the ACA have far better footing, and present one Obama appointee on the Court with an interesting dilemma.
This case does not pose a novel or complex legal question; it came to the court because of inconsistent holdings by lower courts. The issue to be decided in King is whether the Court can edit the language of a law duly passed by the then Democratically controlled Congress, or if the Court must show deference to the law as passed and signed by the President. If the Court chooses to change the language of laws passed by Congress and signed by President Obama, it would in effect be legislating and encroaching on powers bestowed solely to Congress.
In a case involving the Indian Gaming Regulatory Act (Michigan v. Bay Mills Indian Community) Justice Kagan’s own words provide the metaphorical rope with which to hang the ACA in King:
“'But this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts — addressing one thing without examining all others that might merit comparable treatment. Rejecting a similar argument that a statutory anomaly made 'not a whit of sense,' we explained in one recent case that 'Congress wrote the statute it wrote' - meaning, a statute going so far and no further. . .
This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that . . . Congress 'must have intended' something broader."
It may well be that patience and a broader respect for our institutions might result in better public policy and a healthier republic than impulsiveness and blind ideological pursuit. The nation would certainly have been better off if then-Speaker Pelosi, Leader Reid and President Obama attempted building something of a national consensus prior to ramming the ACA through on a strictly partisan vote.
It may well be that the ‘smart’ people are about to learn that being smart is no substitute for wisdom.
This article is an opinion article written by John Jordan, the CEO of Jordan Winery, co-founder of Labrador OmniMedia (creator of Tastevin, a tablet-based restaurant beverage list software), and a member of the Hoover Institution’s Board of Overseers at Stanford University.