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“Can’t you read?”: Legal Misinterpretation and the Affordable Healthcare Act

July 5, 2012

Last Thursday, The Supreme Court published its much-anticipated decision on National Federation of Independent Business v. Sebelius. Initially, it was reported that the Court had struck down a key feature of the Affordable Health Care Act, or “Obamacare,” as patently unconstitutional. News organizations CNN, The Huffington Post, and Fox had raced to report the news, and the news traveled fast, thanks also to NPR and Time, who quickly tweeted about the defeat, citing CNN as their source. Just as quickly, Republican Senators and Congressmen called the Supreme Court’s decision “great news for the American people,” “a big win for liberty,” “a victory for the constitution.” For some, there was even religious-like celebration. President Obama, for his part, was “a bit crestfallen,” reported Politco, as of course were many others. But not for very long.

By now we know that most of mainstream media initially misinterpreted the Supreme Court decision. The 198-page decision, which was written by Chief Justice John Roberts, does say that the individual mandate for American citizens is not a valid exercise of Congressional power under the Commerce Clause, and this is what CNN and Fox reported, literally reading the ruling themselves for the first time, out loud on the air. But from this it did not follow that the mandate was unconstitutional, a fact that is made more or less clear by Justice Roberts later in the ruling.

Naturally, a great deal of teasing has ensued, particularly for CNN and Fox. At one point, the acid from competing news groups became so caustic that an editor at the AP News Desk sent an email that ordered AP staffers to stop mocking CNN and Fox on social media sites “for their mistake.” But if many in the media have been unnecessarily snarky over the gaffe, then the public has been openly hostile, particularly toward CNN; and for CNN, whose ratings and reputation had already taken a turn for the worst in recent months, it’s been a “fucking disgrace,” said one CNN veteran.

Of course, it’s tempting for us to think CNN just made a stupid mistake in their rush to be the first to report the news, rather than report it accurately. Perhaps, some have even joked, their reporters simply can’t read? CNN and Fox’s usual bombast before, during, and after the decision only made matters worse for themselves, as the events reported after the fact only make them seem more foolish to us now. This gaffe brings to light interesting concerns about the ethics and protocols of news media, but what no one seems to be asking is why a Supreme Court decision with major public implications is so damn difficult to understand in the first place.

The woman who first broke the wrong story to the world, CNN congressional correspondent Kate Boulduan called the book-length document a “very confusing opinion,” saying it was “legally dense” and very “thick.” Boulduan is not a lawyer.

Unfortunately, this is also why it may be concerning to hear that CNN’s chief legal analyst Jeffrey Toobin also initially misinterpreted the Court’s ruling. A former editor of the Harvard Law Review, Toobin told The Huffington Post that, “five minutes into [reading] Chief justice Robert’s opinion … [if] you would have asked anyone in that room whether this law was going to be held unconstitutional, I think we all would have said yes.” And everyone in the room would have been wrong.  In other words, it’s not just veteran producers and junior reporters who are out of their depth when trying to read and interpret what the Supreme Court says when it speaks, but also former editors of the Harvard Law Review. In this way, the source of CNN’s initial mistake must extend past their lack of familiarity with the technical details of law, of which even Toobin is decidedly an expert.

In his classic 1981 article “The Personal, Technical, and Public Spheres of Argument,” Thomas Goodnight argued that matters of public deliberation were becoming eclipsed by the technical sphere; in other words, he worried that, increasingly, the public depended on experts to do their deliberation for them, and for the media and politicians to tell them what to do. This is not a recipe for a good democracy. This is not a recipe for democracy at all. Goodnight’s concern about how to maintain the citizen’s role in deliberative arguments that concern, say, their constitutional rights, in the face of technical expertise, seems especially relevant in this recent Court ruling. After all, what role did most of us play? In the last 75 years, technical discourse, and legal language in particular, has exploded, and with it technical authority and the authority of law over the public. But it is far from certain, as the historian Charles Beard has pointed out, that the general knowledge thought necessary to rule or to be an active, informed citizen has become any more developed.

If you want to know more:

  • Here is a copy of the 198-page ruling in question.
  • The controversy over the language of the law is heated and ongoing. Some, like R. George Wright, have argued that the law simply can’t be less complex; also, that the public sphere too quickly assumes legal writing is too technical to understand in the first place. This means we don’t have to work to understand it, or that we even have to try to; instead, we demand it change rather than appreciate the advantages of its “complexity” in some cases.
  • Most law schools do emphasize clarity in their writing courses, but Scott Dodson has argued quite convincingly that any idea of jurisdictional clarity in legal writing pedagogy still remains grossly underdeveloped and illusory.
  • Contrary to Wright, Laura Little of Tempe University argues that the Courts have a vested interest in keeping things just this way. Little has found that the Courts purposefully hide the law from citizens, pointing to her empirical study of linguistic devices of obfuscation in United States Supreme Court opinions as evidence. Her “Hiding with Words: Obfuscation, Avoidance, and Federal Jurisdiction Opinions” found that Supreme Court Justices take license with jurisdiction rulings to disguise decisions on the merits of disputes, control the development of citizens’ constitutional rights, or avoid difficult legal issues.
  • For a rhetorical approach that examines the words used in legal institutions and proceedings and explores both the literary aspect of legal life and the role of rhetoric in shaping the life of the law, see Austin Sarat and Thomas R. Kearns’ volume The Rhetoric of Law, with essays by Lawrence Douglas, Robert A. Ferguson, Peter Goodrich, Barbara Johnson, Adam Thurschwell, and James Boyd White, among others.

Avery Jacob Wiscomb teaches composition at Carnegie Mellon University.

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