During his testimony before the House, Justice Kennedy was asked to discuss the politicization of the judiciary. His response, which I think bears on the issue in King v. Burwell, focused on how the Courts presume that all three branches of the government are functioning, and that “gridlock” should not impact whether the Court invalidates statutes.

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.

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