Any future lawyers in the bunch?

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How Dr. Seuss Could Save Obamacare

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What does a red grouper have to do with the Affordable Care Act? Maybe a lot. The U.S. Supreme Court ruled Wednesday on a quirky case in which it had to decide whether the fish counted as a “tangible object” under the Sarbanes-Oxley Act. The decision broke down in a particularly strange way across the usual liberal-conservative lines. Reading the tea leaves -- or maybe the fish entrails -- it's possible to get some clues about how the court will interpret the ACA in the major case it will hear March 4.

The fish case -- Yates v. United States -- had some funny facts. Briefly, a fisherman was caught at sea with undersize red grouper. On the way back to port, he threw them overboard to avoid being punished. He was then prosecuted under a provision of Sarbanes-Oxley that makes it a crime to destroy any “record, document or tangible object” with the intent to obstruct a federal investigation.

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To decide the case, the court had to rule on whether a fish is a tangible object. The plurality opinion, joined by four justices, was written by Justice Ruth Bader Ginsburg. It ruled that, taken in the context of the law, the destroying of the fish should not be counted as a violation. The reasoning depended on the context in which the phrase was used. Ginsburg wrote that the dictionary definition of “tangible object” could not solve the problem. She quoted a famous statement by Judge Learned Hand: “Words are chameleons which reflect the color of their environment.” In the context of the Sarbanes-Oxley law, enacted after the Enron scandal, the environment was one of corporate records. It followed that the fish was an oddity when considered in this context. For good measure, Ginsburg added a couple of Latin rules for statutory interpretation that she said supported the idea of reading the words “tangible object” as part of a list that gained meaning from its context.

All of this would be normal enough in a Ginsburg opinion joined by Justices Stephen Breyer and Sonia Sotomayer. Led by Breyer, the liberals have emphasized the importance of statutory purpose and context over literal readings.

But oddly, the fourth justice to join the opinion was Chief Justice John Roberts, who ordinarily votes with the conservative flock on statutory questions. Even more oddly, the fifth vote necessary to decide the case in favor of the fisherman came from Justice Samuel Alito Jr. He didn’t join the opinion, but wrote separately relying on the same Latin maxim to justify the same outcome.

As if that weren’t strange enough, the dissent in the case was written not by Justice Antonin Scalia, the king of textualists, but by Justice Elena Kagan, the outlying liberal. In her punchy dissent that could almost be called Scalian, she cited the Dr. Seuss classic, “One Fish, Two Fish, Red Fish, Blue Fish” to show that a fish was indeed a tangible object. And she dismissed Alito’s use of an old canon involving a “game of Mad Libs.”

So what is going on here? And what does it tell us about King v. Burwell? For one thing, Roberts was willing to join the liberals to read a statute according to context. Conventional wisdom suggests that context would help interpret the ACA so as to permit tax subsidies for federally created state insurance exchanges, the crucial issue in the King case. Of course, Roberts might eventually claim that context goes the other way in the Obamacare case. But at a minimum, he seems not to want King v. Burwell to look as if it follows partisan lines on deep questions of statutory interpretation.

For another thing, Alito seems also to have thought that the case might have ACA implications. That, presumably, is why he refused to join Ginsburg’s opinion and insisted on writing a separate one relying on the canons of interpretation rather than the principle context. Alito isn’t going to jump off a conservative ship in the ACA case.

As for Kagan, the subtlety is greater still. She ended her opinion by stating overtly that the relevant provision of the act, “is a bad law -- too broad and undifferentiated.” Then she went even further calling the law, “not an outlier, but an emblem of a deeper pathology in the federal criminal code.” With this comment, Kagan was openly expressing her concern about overcriminalization and the power it gives to prosecutors.

The fish case was a great opportunity for Kagan to make this point. But at the same time, she was able to stick close to the conservatives, and especially Justice Anthony Kennedy, in a statutory interpretation case. The great hope for liberals is that one of the conservatives might be peeled away in the ACA case. For that to happen, it’s crucial to avoid the appearance of lockstep partisanship. Whenever Kagan can vote with the conservative, she does; especially in a dissent when the outcome is already determined. Whether that will matter in King v. Burwell remains to be seen. Tune in next week for an update.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net