Lawyers who are hoping to bring a case to the Supreme Court typically claim that the law is on their side, and they generally rely on citations to legal authorities and doctrines to prove this point. It’s not every day that an attorney states openly to a reporter that he thinks he’s going to win his case because he expects the justices to behave like partisan hacks.
And, yet, that’s more or less what Michael Carvin, the lead attorney behind a last ditch effort to gut the Affordable Care Act, told Talking Points Memo’s Sahil Kapur on Wednesday. According to Kapur, Carvin expects the Supreme Court to take up his case because there will be four justices — the amount needed for the Court to take a case — who aren’t “going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” He added that he does not expect to “lose any Republican-appointed judges’ votes” in the D.C. Circuit, an appeals court that is currently considering the case, and that he expects the Republicans on the Supreme Court to follow their fellow Republicans’ lead.
When asked if he thinks he could lose any of the Supreme Court’s five Republicans, Carvin “smiled and said, ‘Oh, I don’t think so.'”
Last July, two Republican members of the United States Court of Appeals for the District of Columbia Circuit ordered much of Obamacare defunded at Carvin’s request. The full DC Circuit withdrew this decision earlier this month, and announced that the case would be heard again by the full court in December.
Although Carvin attributes this fact to “a bunch of Obama appointees on the D.C. Circuit,” the truth is that the Obama appointees on this court could have only played a partial role in the decision to withdraw the two GOP judges’ decision. All eleven of the DC Circuit’s active judges considered whether to rehear the case, and a majority of six was required to withdraw the two Republicans’ decision. President Obama, however, appointed only four members of the court. Thus, even if all four of the Obama appointees voted to rehear the case, at least two judges who were appointed by a different president must have agreed with them or the original decision would not have been withdrawn.
The DC Circuit does not announce how each judge votes when a request to rehear a case is filed, so, while it is likely that President Obama’s four appointees disagreed with the legally doubtful reasoning in the two Republican judges’ decision, no one except the judges themselves and some members of the court’s staff are aware of how the court’s members voted on this matter. Carvin’s claim that the Obama appointees voted against him is speculation.
Carvin is correct, however, that his best chance of winning this case is to hope that the justices will place their partisan preferences before the law, as the legal arguments presented in his briefs are weak. As ThinkProgress previously explained, Carvin’s legal theory misreads the Affordable Care Act by fixating on one line of the statute to the exclusion of other text that cuts against his claim that the law should be defunded. This method of reading a statute defies the Supreme Court’s command that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”
Carvin also asks the courts to read Obamacare in a way that would render much of its language virtually meaningless. As we explained in a lengthy examination of the flaws in his lawsuit, Carvin “expect[s] the courts to believe that Obamacare is supposed to create barren health exchanges where little or no health insurers offer exorbitantly priced insurance that hardly anyone can afford.” This claim, among other things, cannot be squared with the law’s declaration that it will achieve “near-universal coverage by building upon and strengthening the private employer-based health insurance system.”
Nevertheless, the fact that Carvin’s legal arguments lack merit does not necessarily mean that he is wrong about how the justices will view his case. In August, the Washington Times examined the voting patterns of judges in cases involving the Affordable Care Act. They found that “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.” Pure partisanship, not the merits of a particular legal argument, has been the greatest predictor of how judges will decide cases involving this politically charged law.
But if judges cannot set aside their partisan preferences, then that is an indictment of the very legitimacy of the judiciary. Elected officials are empowered to govern because their authority flows from the will of the people. Federal judges, by contrast, enjoy no popular mandate and they cannot be removed from office in a future election if they abuse their power or otherwise to harm to the law. Nevertheless, the Constitution entrusts them with significant authority because it expects judges to objectively apply the law regardless of their political views.
Yet, if judges behave just like ordinary politicians, then the case for giving them any power whatsoever breaks down. Between giving an elected official who can be removed from office the power to set policy based solely on that official’s own political views, and giving that same power to an unelected official who serves for life, it is better to leave that kind of power in the hands of people who are actually accountable to the people. Placing that kind of power in the hands of unelected officials with life tenure, at least if those officials do not restrain themselves by following objective legal principles, is akin to oligarchy.
So Carvin’s prediction that Republican justices can be trusted to advance Republican policies even in a case such as this one, where the legal arguments for doing so are weak, may in fact prove correct. Should Carvin be vindicated, however, the justices will deal a grievous self-inflicted wound to their own institution.