During his annual visit across First Street, Justice Kennedy weighed in on one of our favorite topics–the relationship between judicial review and gridlock. Here is a (really) rough transcript, as I feverishly tried to type down what he was saying (around 4:05 ET).

Some argue that gridlock should effect the way we interpret statutes. That seems to me the wrong proposition. We have to assume that we have 3 fully functioning branches of the government, committed to proceeding in good faith in good faith to resolve the problems of this Republic

I’ll post the complete transcript later when I can. Chris Geidner and Lawrence Hurley also picked up on it.

Update: Here is the transcript from CSPAN closed captions:

AND WE THINK AN EFFICIENT RESPONSIVE LEGISLATIVE AND EXECUTIVE BRANCH IN THE POLITICAL SYSTEM WILL ALLEVIATE SOME OF THAT PRESSURE. WE ROUTINELY DECIDE CASES INVOLVING FEDERAL STATUTES AND WE SAY, WELL, IF THIS IS WRONG, THE CONGRESS WILL FIX IT. BUT THEN WE HEAR THAT CONGRESS CAN’T PASS A BILL ONE WAY OR THE OTHER. THAT THERE IS GRIDLOCK. SOME PEOPLE SAY THAT SHOULD AFFECT THE WAY WE INTERPRET THE STATUTES. THAT SEEMS TO ME A WRONG PROPOSITION. WE HAVE TO ASSUME THAT WE HAVE THREE FULLY FUNCTIONING BRANCHES OF THE GOVERNMENT, GOVERNMENT THAT ARE COMMITTED TO PROCEED IN GOOD FAITH AND WITH GOOD WILL TOWARD ONE ANOTHER TO RESOLVE THE PROBLEMS OF THIS REPUBLIC.

Video is here.

Kennedy’s comments bear on an exchange that came up during King v. Burwell where the SG told the Court that “this Congress” would not fix the ACA if the Court invalidated the IRS Rule. AMK does not seem persuaded by the argument that the Court should consider whether Congress will, or will not fix the law. This does not bode well for the government.

I repeat here something I wrote on argument day in King v. Burwell.

One of the more jarring exchanges today at oral arguments in King v. Burwell was between Justice Scalia and Solicitor General Verrilli. Justice Scalia said that if this statute doesn’t work, Congress can fix it.

We all know the odds of this happening are slim–though reconciliation may be an option to get beyond the filibuster and force the President’s veto–and reflects what Richard Re has called the “Doctrine of One Last Chance.” (I discussed it here in the context of Pruitt v. Burwell). Like in Shelby County, the Court can give Congress a task they know they won’t do. We all know this. But the Solicitor General is not supposed to acknowledge it. But acknowledge it, he did.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­

(Laughter.)

You can’t tell from the transcript, but Verrilli said it very sarcastically, with the stress on “this.” As in, “are you kidding me? This Congress? Fix something? Ha.” I heard a slight chuckle in his voice.

Nancy Pelosi, who was sitting 3 seats away from me, shook her head at this line. It’s okay for Pelosi to make these points, but not the Solicitor General at the lectern.

 

After the laughter, Verrilli dug his hole deeper.

GENERAL VERRILLI: You know, I mean, of course, theoretically ­­ of course, theoretically they could.

This was also said with a slight chuckle.

Justice Scalia, who seemed visibly offended by this comment, replied sharply.

JUSTICE SCALIA: I ­­ I don’t care what Congress you’re talking about. If the consequences are  as disastrous as you say, so many million people  without ­­ without insurance and whatnot, yes, I think this Congress would act.

I found it entirely inappropriate for the SG to say this. This wasn’t impromptu, but was no doubt a rehearsed line. And it wasn’t necessary to his argument. This was a political comment, not a legal one. It was beneath the Office to dignify these partisan concerns. Verrilli, whom I defended in my book (against the currents) undermined his credibility with these two remarks. He should not have said them.

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