In Bread and Jam for Frances, a children’s book about a family of badgers, Frances’s best friend, Albert, eats his lunch bit by bit so that the sandwich, the pickle, the egg, and the milk come out even. Supreme Court decisions are a bit like that. In decisions on marriage equality, health care, and the Second Amendment, the justices interpreted the facts of each case and chose their arguments to make their decision come out right.
Last week the Supreme Court issued opinions in two major cases: Thursday’s decision in King v. Burwell upheld the tax credits central to the Affordable Care Act, ensuring continued health insurance for millions; on Friday, Obergefell v. Hodges extended constitutional protection to same-sex marriages. In 2008, the Court ruled in District of Columbia v. Heller, that the Second Amendment guaranteed Americans the right to tote a gun. These decisions, which supporters cheered and critics decried, will go a long way toward establishing universal health care and guaranteeing marriage equality, and the gun rights decision has already resulted in a lot more guns in the workplace, in churches, even in schools. The majority in each case insists its decision is objective, while the minority charges that the Court is making law, not interpreting it.
Americans learn in school how a bill becomes a law. But there’s no Schoolhouse Rock to explain how laws get their meaning. Constitutionally, interpreting the law is a job for the courts, not the middle schools. Legislatures enact our laws, but sometimes even legislators don’t know the meaning of what they’ve passed. Chief Justice Roberts, in his affirmation of the Affordable Care Act, quotes Justice Felix Frankfurter describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”
Roberts noted that the 900 pages of the Affordable Care Act contain “more than a few examples of inartful drafting,” creating inconsistencies and ambiguities, and he patiently explained to the ACA’s opponents that if the words of any law are ambiguous, they must be interpreted in the entire context of that law. In his dissent in the case, Justice Scalia insisted that the passage in question from ACA is clear and unambiguous, and he charged Roberts with rewriting the law to make it mean what he wanted it to mean, a sure sign, according to Scalia, that “words no longer have meaning.”
The cartoon cited by Frankfurter and referred to by Roberts originally appeared in George Lichty’s syndicated newspaper “Grin and Bear It” series in 1947. Frankfurter actually misremembered the cartoon’s caption, which Ben Zimmer has artfully tracked down, but it’s the Frankfurter version, not the original, that’s important here. So far, no one has accused Justice Frankfurter of rewriting the caption to fit his purposes.
On Friday, when the Court ruled on same-sex marriage, the Chief Justice found himself agreeing with Scalia and the other conservatives on the Court, and in his dissent Roberts deployed the same argument that Scalia had used against him the day before: judges should interpret laws, not make them.
The liberal majority insisted that it was simply reading bans on same-sex marriage in the context of the Constitution by placing the issue alongside a series of Court decisions that decriminalized interracial marriage, same-sex intimacy, and contraception, and by viewing marriage as an evolving institution.
Here’s what Roberts wrote about judicial objectivity in his dissent in Obergefell:
Under the Constitution, judges have the power to say what the law is, not what it should be.
This is a common assertion, one that sounds compelling: bending a law to conform to ideological bias may be fine for politicians, but justice is supposed to be blind. Unfortunately, “saying what the law is” is never objective, because it requires an act of interpretation, and interpretation is always subjective.
The meaning of any text, whether legal, religious, literary, or conversational, is constructed not just from its words, but also through the broad context in which those words occur. That meaning is never monolithic. It varies from speaker to speaker, and it varies over time, as well. To paraphrase the slogan of the National Rifle Association, which brought the case against gun control to the Supreme Court, words don’t make meaning, people do.
Here’s what the Second Amendment says:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
In his landmark opinion in Heller, Scalia read the Second Amendment in a way that made it come out right for him. He insisted that the first part of the Second Amendment, tying gun ownership to military service, should be ignored. And he dismissed the centuries-old association of “bear arms” with military contexts, insisting that the phrase as used in the amendment could just as easily refer to hunting and self-defense. In 1995, the historian Garry Wills observed that “one does not bear arms against a rabbit”—it’s just not idiomatic to say that—which suggests that Scalia and other gun rights advocates bent the language as well as the law to suit their agenda. But that’s their prerogative. In legal interpretation, the opinion of a judge, or of a judicial majority, becomes what the law means—at least for a time, since such interpretations aren’t always final. They frequently require further interpretation, sometimes revision, occasionally, reversal. Even in the law, no meaning is ever final.
As Richard Posner has shown, neither the liberals nor the conservatives on the Supreme Court have a monopoly on subjectivity. But sometimes their subjectivity balances out. Now that King v. Burwell has okayed the tax credits in the Affordable Care Act, that additional health care will be useful to counter all those guns the Court gave us in Heller.
Further reading: In my next post, I look at the evolving legal and dictionary definitions of marriage.
Ernie Bushmiller, who drew the popular “Nancy” cartoons, offers his take on the subjective nature of saying what words mean (the date, in the third panel, is hard to read, but this cartoon is from the 1970s). Whether we’re dealing with law, literature, scripture, or conversation, words don’t make meaning, people do.
