On Wednesday’s show, Dean of the University of California, Irvine, School of Law Erwin Chemerinsky and Alliance Defending Freedom’s Senior Litigation Counsel Matt Bowman reviewed the two biggest cases of the current Supreme Court term, only one of which is certain to be heard this term —King v. Burwell, the Fourth Circuit case in which cert has been granted and which concerns tax credits for those purchasing insurance from the federal exchange, and DeBoer v Snyder, concerning challenges to traditional marriage laws and state constitutional amendments in Ohio, Michigan, Kentucky and Tennessee, which is expected to make it to the Supreme Court if not this term, then next. (The opinions in the case are here.)
The transcript of the debate on both cases between Bowman and Chemerinsky is here, and in quick order fairly and comprehensively states the issues in both of these hugely important cases. Both cases have a controversial central subject matter –Obamacare and the definition of marriage, respectively– but both also raise the fundamental issue of a free republic: Who decides and when? Both cases are about judges and judging and the role of the courts vis-a-vis the other branches of the federal government, the states, and the people these courts either serve, or rule, depending on how one views their role. Judge Sutton’s opinion in DeBoer is perhaps among the most elegant arguments for judicial restrain issued in the past many decades.
[I]mportant as the decision [in DeBoer] was in itself, the larger event was the opinion released for the majority by Judge Jeffrey S. Sutton,” wrote Dr. R. Albert Mohler, president of Southern Baptist Southern Theological Seminary. “Judge Sutton is known for his eloquent prose and forceful argumentation,” continued Mohler, adding:
The opinion released last Thursday was a blockbuster in terms of forceful argument. Judge Sutton’s opinion is a triumph of constitutional argument and the defense of common sense. It is a masterpiece of logic and a compelling argument for the rule of law.
A lot of briefs will be filed and many more segments on my show will be spent on the DeBoer case, and similar amounts of ink and air time on King, but tell me whether you care about the rule of law –really care about who decides who decides– and I’ll tell you what you think about both cases. Because I know four justices think all of Obamacrae unconstitutional and a fifth, the Chief Justice, will not side with the government’s attempt to will a new and important clause into a law that probably was left out on the combined assumption and attempt to incentivize the states to set up state exchanges, I think King is over before the argument is begun, and that the federal exchange will as a result not be able to subsidize purchases of insurance made via it.
About DeBoer, well, it all depends on Justice Anthony Kennedy, and whether he really is federalism’s best defense or a justice in search of a place in history, whether that history turns out well or ill. Many, many serious people say they know which way he will vote in DeBoer when it gets there, and I think them overconfident no matter what they argue. We will find out soon enough, whether this June or next (and I hope it is next to allow for as much writing and argument as possible to occur.) The short summary of what’s at stake in both cases is, however, fully and accurately conveyed in our segments yesterday. Enjoy the transcript.