Most legal scholars, including Professor Jonathan Adler who attacked the Affordable Care Act (“ACA”) with a vengeance on several occasions through what many of us considered less than persuasive legal challenges, have opined that Texas Judge Reed O’Connor’s attempt to kill the ACA for good is legally ridiculous and has little chance on appeal. In response, some legal realists (like myself) have suggested “not so fast,” because one never knows what the Supreme Court is going to do in these kinds of high profile political cases.

Over at Balkinazation, Professor Jack Balkin applied his thoughtful “on-the-wall”/”off-the wall” legal theory to Judge O’Connor’s absurd view that when the 2017 Congress reduced the penalty (or tax) for not complying with the ACA’s individual mandate to zero, what that Congress was really saying was it wanted some forum-shopped judge probably in Texas to strike down the entire law on the grounds of non-severability. This was all some secret Congress code of course since the 2017 Congress did not in fact repeal the ACA but kept it intact just without the mandate/tax.

Balkin rejects the idea that this legal conclusion has no chance of being affirmed for the following reasons:

“Reasonableness in the law–which involves a host of professional, prudential and practical judgments beyond simple logic–is shaped by social influence, whether or not lawyers care to admit it…. [T]he perceived quality of legal reasoning and legal arguments are not exogenous from social influence. Indeed, judgments of legal quality and social influence mutually shape each other. This mutual influence is what allows legal arguments to move from off-the-wall to on-the-wall, as they have so many times before in American history. What moves arguments from off-the-wall to on-the-wall depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ–or even the best legal argument, all things considered–then it becomes on-the-wall.”

Balkin’s analysis is smart and accurately reflects the rise of many legal arguments (such as the infamous broccoli argument accepted by five Justices in NFIB v. Sebelius).  I do want to suggest, however, that Balkin’s analysis is under-inclusive in one important sense: sometimes an off-the-wall legal argument is adopted by the United States Supreme Court for no other reason than a Justice or the Court says so, and when that happens, the argument is not only on-the-wall, but becomes the law of the land, no matter how legally crazy it happens to be.

There are many examples of this phenomenon, but the most important and far reaching one in recent times is Chief Justice Robert’s literal invention of a “fundamental principle” of “equal state sovereignty” in two important voting rights cases: Northwest Austin v. Holderand Shelby County v. Holder.

Both cases of course involved Section 5 of the Voting Rights Act. In Northwest Austin, the Court resolved the issue on statutory grounds, but Roberts wrote the following:

“The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana363 U. S. 116 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbachsupra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets. (Emphasis added).”

As other scholars have pointed out, before Roberts wrote this paragraph, there never was any, much less a “fundamental principle,” of equal state sovereignty limiting Congress’ power, and the cases Roberts cites don’t say otherwise. In fact, as to the 15th Amendment specifically, the provision governing race discrimination in voting, the Court in Katzenbach explicitly rejected the principle in a part of the very sentence Roberts cites above, but which he sneakily replaced with an ellipse. 

Here is the original passage from Katzenbach: In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary…. The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis added).

Notice how the phrase “for that doctrine applies only to the terms upon which States are admitted to the Union,” disappeared from Roberts’ quotation. Nevertheless, in Shelby County, Chief Justice Roberts used the alleged “fundamental principle” of equal state sovereignty several times to argue that Congress needed strong reasons to treat different states differently despite the undeniable facts that no text in the Constitution supports such an idea, and the unambiguous text of the 15th Amendment says that Congress may enforce it through all “appropriate legislation.” He simply cited his own opinion in Northwest Austin, which completely misquoted Katzenbach.

The idea that Congress can’t treat some states, especially the Southern ones, differently when it comes to racial discrimination (absent a strong reason) when Congress acts under the authority given it by the Reconstruction Amendments, enacted in part to change the behavior of the Southern States, is an “off-the-wall” legal argument based on text, history and precedent. Yet, by mere ipse dixit, Roberts and the other conservative Justices employed this facile idea to render mostly useless what many people think is the most important statute ever enacted by the Congress of the United States–the Voting Rights Act (the specific version struck down was passed by a unanimous Senate and signed by President George W. Bush).

Balkin is correct that off-the-wall arguments often become on-the-wall due to their acceptance by political parties, lower court judges, social movements, and academics. But sometimes arguments move from off-the-wall to on-the-wall for no other reason than the Supreme Court adopts them despite persuasive text, history, and precedent to the contrary. Will Judge O’Connor’s off-the-wall striking down of the ACA be reversed on appeal? Maybe, and it should be, but please don’t bet your Texas ranch on it.

Cross-Posted on Dorf on Law

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