Describing her recent Supreme Court experience as “my Super Bowl,” Susan Feigin Harris offers her personal account and analysis of the oral arguments in King v. Burwell.
I was ready to go: hat, gloves, boots and parka. A legal pad and two pens. Arriving at the U.S. Supreme Court at 5:45 a.m., I took my place in the “bar line” to ensure that I would be granted entrance to the King v. Burwell oral arguments being heard that morning. This was the culmination of some months of planning that included applying for admission to the Supreme Court bar and learning the unique rules governing entrance to the court.
I have always wanted to witness a Supreme Court argument, but never did I think there would be such prominent healthcare cases for me to view until the Affordable Care Act came along! Below are my impressions of the day, which I share with you as an eye witness and avid admirer of the Supreme Court. This was my Super Bowl!
Armed with my coffee, I arrived in the queue reserved for lawyers admitted to the Supreme Court bar — a queue that was much shorter than the one at the separate entrance reserved for media and the public, who were also amassing in the cold and rain. There, I joined the bevy of lawyers standing in line, many of whom had written amicus briefs for the various trade associations and clients they represented. I was there because of my intense interest, on behalf of my clients, in the success of the Exchanges and subsidies in insuring many Americans, and concerns that an unraveling of these new “markets” would cause a death spiral for the health insurance system.
By 7:30 a.m., the doors opened to the members of the bar only. The security guards began to count us off and take us into the building for check-in. After heading through security and the scanners, we waited another hour before we were checked in with our Supreme Court bar number and personal ID; only to wait in line again, this time with a numbered ticket (I was #10!). Many of us had chatted and agreed to help each other save seats and retain our hard-earned places in line. As we anxiously awaited the morning’s events, we discussed the various perspectives on the case, wondering what the justices would ask and whether the standing issue would be raised.
Once checked in, we were instructed on the rules of the court — no phones and no electronics could be used above the bottom floor, and nothing except a pad and pen could come into the courtroom with us. We watched as all counsel, the press and other notables in anticipation of the hearing came in. We were then ushered up the staircase to a room containing lockers, where we hurriedly secured our belongings so we didn’t lose our place in yet another line. Through a second scanner we were ushered into the courtroom where we took our long-awaited seats inside the brass railing reserved for members of the Supreme Court bar and behind the counsel’s table.
For that long wait, hours on my frozen feet and now looking rather like a drowned rat, I earned a spot in the second row, center, just behind petitioner’s counsel and directly in front of Justice Scalia — a superb placing, along with about 100 of my new lawyer friends! You make fast friends in this environment, and the experience itself is replete with expectation and excitement.
We were packed in and urged on multiple occasions to “be quiet.” Right! You put 100 lawyers in the Supreme Court at one of the most talked-about hearings and the expectation was quiet? Again, it was somewhat surreal.
The courtroom is full of history and bears the weight of the highest court in the land. The ceiling is beautifully detailed with ornately painted plaster. The large, heavy, velvet curtains shield the machinations behind the nine chairs of the court. Clerks rush in and out with briefs and water; members of the press take their places to the left of the chamber.
The courtroom then filled with many elected and government officials, including Senate Minority Whip Dick Durbin (D-Ill.); former Connecticut Senator Chris Dodd; Sens. Ron Wyden (D-Ore.), Lamar Alexander (R-Tenn.), Patty Murray (D-Wash.) and Orrin Hatch (R-Utah); House Majority Leader Kevin McCarthy (R-Calif.) and Minority Leader Nancy Pelosi (D-Calif.); and Reps. Paul Ryan (R-Wis.) and Fred Upton (R-Mich.). Health and Human Services Secretary Sylvia Matthews Burwell and former Secretary Kathleen Sebelius were also present, as were members of the White House team. Solicitor General Donald B. Verrilli Jr. (in his morning coat) and petitioners’ counsel Michael A. Carvin, and their respective teams, set up at the counsel’s table within a couple of feet in front of me.
The courtroom was completely packed and filled with anticipation, and within seconds we rose as the court was called into session and the proceedings began at precisely 10:00 a.m. Following a reading of an opinion by Justice Scalia and the swearing in of new bar members, the proceedings of King v. Burwell began with the arguments of Michael Carvin, attorney for the petitioners.
The question presented was the legality of the IRS rule that extends tax credits to people who purchase health insurance from federal Exchanges established in the 34 states that elected not to set up their own state-run Exchange. At issue are various sections of the Affordable Care Act (ACA) addressing the Exchanges, but the argument hinges on the words “established by the State.”
During the hearing, it was impossible not to begin speculating how the justices would rule, even when aware that justices often ask questions for many reasons and that the briefs often have a greater impact on a final decision, as opposed to oral argument.
Both counsel, Michael Carvin and Donald Verrilli, were extraordinary, and it was a lawyer’s privilege to be in the presence of that level of lawyering. Each masterfully responded to the variety and fast-moving nature of the questioning, making their argument while answering the questions and hypotheticals thrown their way. They both excelled in their oratory and their facility with the respective arguments, the statutes and the briefs as well as the manner in which they anticipated the justices’ questions were awesome to observe.
Carvin, counsel to the petitioners, hardly uttered a few words before being interrupted by Justice Ruth Bader Ginsburg, who asked the fated “standing” question (which we had all been discussing in the queue earlier that morning). Were the four plaintiffs actually harmed by the IRS rules such that they had a stake in the lawsuit?
In response to Justice Ginsburg’s question regarding whether petitioner Douglas Hurst qualified for benefits with the U.S. Department of Veteran’s Affairs (VA), Carvin replied that Hurst’s 10 months of military service had been insufficient to qualify him for VA care. According to Carvin, even if Hurst had been technically qualified for VA status, he would be ineligible for benefits unless he actively enrolled, which he had not. He further asserted the district court had conducted fact-finding and the government never disputed the standing of petitioners. Addressing petitioner Brenda Levy, whom Justice Ginsburg asked about given her qualifying age for Medicare, Carvin clarified that this would occur in late June 2015. As a result, Levy was currently subject to the individual mandate, satisfying the standing question, according to Carvin. Finally, Carvin (nearly breathless by this point) argued that only one petitioner needed to have standing to satisfy the requirement.
When Solicitor General Verrilli took his turn at the lectern, he addressed the standing question carefully, indicating that he did not dispute the assessment that Hurst was a veteran for only 10 months and therefore would not qualify for VA benefits, but hotly disputed that fact-finding had occurred at the district court level. When Justice John Roberts asked if he was raising a standing question, Verrilli carefully responded that he sought only to address the question asked, provide the government’s perspective and raise the question of mootness should the court determine standing did not exist. At that, Justice Samuel Alito questioned whether the court should conduct a trial “right here” in the courtroom! To which Verrilli conceded, “I’m inferring that at least one of the petitioners has standing.”
As Carvin dived into his case-in-chief relating to the statutory construction, Justice Stephen Breyer, from his left, launched directly into the issue:
Breyer: “As I read the definition … the term ‘Exchange’ means … an Exchange established under 1311. And 1311 says, an Exchange shall be a government agency, et cetera, that is established by the State.… So then you look to 1321 … [which] says, if a State does not set up that Exchange, then … the Secretary is to establish and operate such Exchange…. The only kind of Exchange to which the Act refers … [is] ‘an Exchange established by a State under 1311.’ That’s the definition. So the statute tells the Secretary, set up such Exchange, namely a 1311 State Exchange.”
Breyer: “So what’s the problem?”
Carvin: “What [IRS Rule] 36B turns on is whether the State or the Secretary has established the Exchange.”
Carvin then clarified that IRS Rule 36B says “Exchanges established by the State under Section 1311,” as opposed to established by the U.S. Department of Health and Human Services (HHS), so the IRS Rule eliminates any potential ambiguity created.
This set the stage for a discussion regarding how the context of the language in the statute may play a role in the interpretation, (i.e., the arguments of “contextualism” in reading the statute and legislative history versus a “plain reading” of the language).
Justice Elena Kagan launched into the well-reported hypothetical that drew laughter, involving her clerks, Will, Elizabeth and Amanda. She asks Will to write a memo and Elizabeth to edit Will’s memo and then tells Amanda that if Will is too busy to write the memo, she would write “such memo.”
Kagan: “… my question is … If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?”
The discussion focused on the context in which the instructions were provided to the clerks, but Carvin argued that Congress was clear and not agnostic as to whether the states or HHS established the Exchanges.
Carvin spoke with amazing rapidity, red-faced and was so passionate while taking on questions from Kagan to his right and Breyer to his left that Justice Sonia Sotomayor, before jumping in, implored, “Take a breath.”
Justice Sotomayor then asked whether the reading of the statute Carvin was suggesting intruded so much into the federal-state relationship as to be “coercive in an unconstitutional way.”
Sotomayor: “In those States that don’t [set up Exchanges], their citizens don’t receive subsidies [and] we’re going to have the ‘death spiral’ that this system was created to avoid.” “Tell me how that is not coercive in an unconstitutional way?”
“And if it is coercive, in an unconstitutional way…. In Bond just last term… we said that is a primary statutory command; that we read a statute in a way where we don’t impinge on the basic Federal-State relationship.”
Signaling his deep concern with constitutional coercion from the standpoint of the dynamics of federalism, Justice Kennedy affirmed it as “something very powerful to the point” that if the Carvin argument was accepted, the states are being told “either create your own Exchange, or we’ll send your insurance market into a death spiral.” Carvin quickly replied that the government never made the coercion argument. To which Justice Kennedy retorted, “Sometimes we think of things the government doesn’t.”
Justice Kennedy implored counsel for both sides to consider that the coercion argument raises a “serious” constitutional question. He indicated that it was in the background of how the Supreme Court interprets the case, hinting that this “novel” argument that appeared to take both sides a little by surprise could be a determining factor.
While being pummeled with questions from Breyer, Kagan, Ginsburg and Sotomayor, Carvin did receive several assists from Justices Roberts, Alito and Scalia.
On occasion, Carvin’s appearance before the court in NFIB v. Sebelius came to the fore, where he had argued that without the subsidies driving demand within the Exchanges, insurance companies would have absolutely no reason to offer their products through the Exchanges. This prompted Chief Justice Roberts to ask:
Roberts: “We’ve heard talk about this other case. Did you win that other case?” (Laughter) So maybe it makes sense that you have a different story today?”
Carvin: “I’m really glad your Honor said that.”
Justice Roberts was relatively quiet, while he paid intense attention and was extremely engaged. I could see it on his face. His silence was strategic, in my opinion, to allow him latitude both to determine the direction he would take, as well as how and to whom to assign the opinion.
Justice Breyer focused broadly on the effect of the language “established by the State” and asked Carvin to just address that issue, extending the speaking time in the process well beyond the original 30 minutes provided to each counsel.
Justice Breyer asked how the term “qualified individual” fit into the scheme because, under the Carvin argument, no one in a federal Exchange would be considered qualified to purchase coverage. Justice Kagan then added that there would be no customers and no products that would be sold on the federal Exchange under Carvin’s view. Carvin argued vehemently, in response, that droves of individuals would not drop off the Exchanges and that the government has not predicted that outcome either.
During Carvin’s oral argument, Justices Kagan, Sotomayor, Breyer and Ginsburg asked questions that inferred a leaning toward contextualism in their interpretation of the law. Acknowledging the potential outcomes that could result from an adverse decision for the government, they expressed sensitivity as to the impact on Medicaid and the public’s ability to purchase health insurance coverage as well as a possible death spiral in the insurance market.
By this time, Solicitor General Verrilli began his argument by addressing the government’s position on the standing issue that I discussed earlier when describing the questioning of Carvin by Justice Ginsburg. Following this exchange, Verrilli launched seamlessly into his arguments, just as Carvin had before him.
Verrilli argued that Carvin’s argument, textually, produces an incoherent statute that doesn’t work and that, in contrast, the government’s reading is compelled by the ACA’s structure and design. Moreover, he argued, the petitioner’s reading “makes a mockery of the statute’s express textual promise of State flexibility.” When he argued that it can’t be the statute that Congress intended, Justice Scalia retorted: “Of course it could be … the question is whether it’s the statute they wrote.”
If Carvin was pummeled by the more liberal justices, Verrilli was equally battered by the more conservative wing of the court. Justice Alito was quite active in his questioning, as was Justice Scalia.
Justice Kennedy also asked some tough questions, probing Verrilli on the constitutional question raised earlier. Like Carvin, Verrilli appeared somewhat surprised by Kennedy’s theory, indicating that it was a “novel” question, to which Kennedy replied, “Does novel mean difficult?” (which drew more laughter). Clearly, this was a difficult issue that was raised by the justices themselves and one that had not been anticipated by either counsel.
I must admit that I found myself obsessed with the arguments of Justice Kennedy, especially because they emanated from the prior ACA opinion in NFIB v. Sebelius, which gutted the Medicaid expansion component of the law, now being turned on its head to potentially save the subsidies and their usage on federal Exchanges. The case was widely lauded as one that turned on the legislative intent of the statute and whether the language of the statute meant what it said or meant something different. However, in an instant, the case had constitutional implications. No one knows whether this will be a decisive factor when the decision is written, but it could signal that Justice Kennedy may rule with the liberal justices to save the subsidies on the federal Exchange.
Justice Alito focused on the issue of notice to the states, which Verrilli raised in the context of the constitutional argument. Justice Alito indicated that the court had not heard much from the 34 states that had a federal Exchange, indicating that only six had signed the brief submitted by the states. He also argued that there would be no harm to the states since at any time a state could move forward to set up its own Exchange. This prompted a discussion of how quickly a state could set up an Exchange. A potential fix proffered by Alito was that the court could stay the mandate until the end of the tax year, as they have in other cases.
At this juncture, Justice Scalia jumped back into the fray, cautioning that Congress will not just sit idly by should “all these disastrous consequences ensue.”
Scalia: “Congress adjusts, enacts a statute that … takes care of the problem. It happens all the time. Why is that not going to happen here?”
Verrilli: “Well, this Congress, your honor?”
Drawing more laughter in a room filled with members of Congress, the interplay and discussion by Justices Alito and Scalia, and the assumption that Justice Thomas (who did not speak) would side with them in finding for the petitioners, hinted at various resolutions that might be imposed should the court invalidate the use of subsidies on a federal Exchange.
Verrilli spent quite a bit of time answering Justice Alito’s question relating to the words “established by the State” when he asked why Congress had used these words in drafting the law and if they meant something else. When Verrilli indicated that the words worked perfectly well the way they were written and that the law directs federal authorities to establish “such” Exchanges if the states decline, Justice Scalia retorted that Verrilli was putting a lot of weight on the word “such,” exclaiming, “That is gobbledygook.”
Justice Roberts asked only one substantive question (other than pulling Carvin out of the fire earlier in the hearing), which concerned the role of the IRS and the agency’s ability to interpret the statute. The chief justice asked Verrilli if it was up to the agency to decide, could a new administration just as easily change the interpretation? Verrilli responded that any action by the agency would have to be consistent with an accurate reading of the statute.
Verrilli’s time ended with his making an argument directed, it seemed, at Justice Kennedy. He implored the court to read the statute according to its terms:
Verrilli: “And when you read it in context and you read it against the background of Federalism, you have to affirm the government’s interpretation. Thank you.”
Following a chance to retort by Carvin, delivered in rapid-fire succession, the hearing ended and the justices disappeared behind those velvet curtains in an instant.
In the end, everyone rose in unison and we were escorted out of the room to collect our belongings. I passed the press section, where one of my favorite reporters, Nina Totenberg, was sitting, and the courtroom sketch artists, whose sketches I stopped to admire. I had not noticed the time passing, nor had I felt a pang of any hunger or anything at all. I was mesmerized from start to finish.
I left the room and walked down the front steps of the Supreme Court. It was just past noon and it was over.
Now, we wait.