A Word Of Caution About Today’s ACA Decision from The Supremes

Ken AshfordHealth Care, Supreme CourtLeave a Comment

Like Bush v Gore, early out-of-the-box news reports about the decision today are likely to be inaccurate.  Not necessarily wrong, but they may not convey the whole truth.  There are many aspects to the Affordable Care Act, and the judges may uphold some aspects and reject others.  Then there may be disagreements about the remedy, and several opinions from the bench.  It will take a while to parse.

UPDATE:  Via SCOTUSBLOG, I reprint Lyle Denniston's primer to the decision (before it happens).  He explains the trickiness in discerning what the opinion says:

Supreme Court decisions are issued in a predictable format.  What they say, though, is far from predictable.   And, with the decision expected Thursday in the health care case, figuring out what it says will be complicated by the near-certainty that the Court will not be unanimous.  While an opinion that speaks for a majority — that is, at least five Justices – will be the one that controls the bottom line (what is actually decided), any added opinions may better illuminate or even limit the scope of the outcome or, in fact, help to create multiple outcomes.  Indeed, a case can be decided with less than five Justices agreeing on the reasoning, but at least that many have come together on the bottom line.  That makes it even more important to find out what is in the separate opinions.

Obviously, then, this can be daunting, even for one who has experience in reading Supreme Court opinions, but especially for someone encountering an opinion for the first time.   Fortunately for both regular and new readers, there is almost always a very helpful and much shorter discussion of what has been decided, and it comes out with the opinion itself — indeed, it makes up the opening pages of the  document.  It is sometimes called the “headnote,” but the Court calls it a “syllabus.”   Whatever its name, its function is clear: to describe, in dependably accurate terms, what the Court has decided and how the Justices have voted.  (People depend upon it to say what the Court has decided, but lawyers and lower court judges have to rely upon what is in the Justices’ opinions, not the headnote rendition, because the headnote is essentially a tip sheet, not a part of the ruling in any way.)

If the Court rushes out an opinion, it might not have a headnote with it.  But, with the health care decision having been under study for three months, there very likely will be a headnote.  It will have a quite brief opening section that provides background facts about the controversy, and briefly recites how lower courts ruled on it.  The thing to look for next is the truly vital part of the headnote: it usually begins with the word “Held,” written in italics, followed by a colon.   That is supposed to tell, in brief form or in several paragraphs, just what legal conclusion or conclusions were drawn by the controlling number of Justices.

If at least five joined in one line of reasoning that decided what was “held,” that is the majority opinion and it controls.  But if fewer than five used reasoning that helps decide what was “held,” that will be spelled out, after listing the Justices who agreed with it.  That is what is called a “plurality” decision.  Then there will be a recital of the reasoning of any other Justice, or Justices, who were persuaded to reach the same legal result but with different reasoning.  That, too, will list the names of those who agree with that rationale.  Together, that combination of two groups of Justices adds up to a majority, but only their agreed legal result is controlling, not the reasoning.  (Lower courts are left to figure out which line of reasoning to follow in applying the legal outcome in later cases.)

As the headnote recites the reasoning behind any legal conclusion, it often will use language that is actually in the Court’s opinion, but usually without quoting it verbatim; paraphrasing is standard.

Unfortunately, for the joy of reading sharply worded dissenting opinions, the headnote will not give the reasoning used by dissenters; it will only list the Justices who dissented.   The same is true for Justices who had their own reasons for supporting the result — in other words, they “concurred” in the result, but for their own reasons.  Their names get listed in the headnote, but not their rationale (unless, of course, their votes were necessary to convert a plurality into a majority).

Now, for the coming decision on health care, comes the real complication — in the headnote and in the Court’s opinion or opinions themselves — because there are not just one issue at stake, there are four.

If the Court majority or plurality speaks through one opinion, on all four issues, there will have to be multiple discussions that start with the word “Held.”  The first could be what the Court “held” on whether it had the authority at this point to decide the constitutionality of the individual mandate to buy insurance or face an IRS penalty.  If the answer to that is that the Court did have power to decide the mandate’s fate, the headnote will then move on to another “Held.”

That next one likely would be the Court’s bottom line  on the mandate’s validity.  If the mandate is upheld, there won’t be a “Held” on the fate of the remainder of the law, because all but one of the many other provisions of the new law have not been challenged separately, so if the mandate survives, they do, too.  The one exception to that is the new law’s broad expansion of eligibility of the poor to sign up for medical insurance under the federal-state Medicaid law.  The constitutionality of that has been challenged separately, so the Court has to rule on it even if the mandate is upheld.

If the mandate is struck down, there would have to be another “Held.”  It could say that the Court has decided to nullify everything else, too   That would be the simplest outcome, but the most devastating one because not one phrase or sentence of the huge law would remain intact if that is the bottom line on this point (this is called the severability issue).  But it also could say that the Court has decided only to nullify select parts of the remainder of the law, and perhaps state those in summary, or spell them out a little more fully.  That could be quite complex.   Then there probably would be another “Held” for the Medicaid expansion alone, saying whether it is valid or not.   The states challenging that provision have made different arguments from those they used to challenge the mandate.

For those readers who venture beyond the headnote, the majority opinion (or, if it is a “plurality” opinion) may start with a fairly brief paragraph or two that summarizes what has been held.  One, however, cannot depend upon that being the opening, because some opinions keep the suspense open for a bit, summarizing it a bit later on.  But after the opening, the majority or plurality opinion is likely to follow a common format: background on facts and lower court rulings, and then point-by-point discussion of the questions being decided, with a full explanation of the reasons for the bottom line.  Along the way, there will be a recital of the reasons the challengers used to make their points, and the reasons the defenders used to answer. The Court will say what its own reasons are.   And there could be comments answering points that have been made by dissenters.  (Often, responses to dissenters are recited in footnotes, not in the body of the opinion.)

In the health care opinion (if there is a controlling one, either for a majority or a plurality), it may follow the same sequence as the headnote on the “Held” points.  First could come the discussion of whether the Court has jurisdicton, under the Anti-Injunction Act, to decide the validity of the mandate.  If it finds such jurisdiction, it will then move on to the discussion of the pros and cons of the mandate, and choose an outcome.  If it finds that the Court does not have jurisdiction, the opinion will say why, and there would then need to be no discussion of the mandate or of the other parts of the law — except the Medicaid expansion.  Any challenge to the mandate thus would be put on hold until the mandate went into effect in 2014 (if not repealed by Congress in the meantime).

After that would come the Court’s dicussion of the Medicaid question.

What will seriously complicate the understanding of the Court’s ruling — on any of the four issues about the new law — will be whether the Court had to put together different combinations of Justices applying differing lines of reasoning in order to get enough votes for a bottom line, on each of the four issues.    There could be Justices who think the mandate is valid, but that the Court does not have jurisdiction to decide it, or vice versa.  There could be Justices who want to strike down the mandate, but not all of its provisions, whereas others would cast aside the whole law, from end to end.

Another complicating point now enters.  Recall that the Court is not engaging the four issues as if it were the first tribunal to do so.   What is actually before the Justices is a ruling of the Eleventh CircuitCourt based in Atlanta.   That court’s decision included these “bottom lines,” or holdings: it struck down the mandate (which meant it had accepted that it had jurisdiction to review the mandate’s validity), and it ruled that every other part of the new law remained intact, including the Medicaid expansion.

The different bottom lines to which the Supreme Court will be aiming are those three — jurisdiction, mandate, and the fate of the rest of the law — plus the fourth, separately: the Medicaid expansion.  Thus, the Supreme Court’s bottom lines will say whether it agrees or disagrees with (affirms or reverses) the Circuit Court’s bottom lines.  There could be differing combinations of Justices who come together on each of those bottom lines.

The headnote will be very helpful in sorting out those combinations.  But for the reader to be confident of understanding how the Justices were arrayed, it will be a good idea to read all of what the Justices have written — and perhaps to have at hand a notepad or a computer to tote up the voting alignments section by section and issue by issue.


Told ya so:

Both CNN and Fox News Channel incorrectly reported Thursday that the law's central provision, requiring virtually all Americans to have health insurance, had been struck down. Both networks backtracked when it became clear that the court upheld the provision.