By Dr. Ken Broda Bahm:
Justice Scalia strongly believes that you should not be forced to buy broccoli. This week, the U.S. Supreme Court is addressing the legality of the Affordable Care Act, with Tuesday’s oral arguments focusing on whether an individual mandate to buy health insurance is consistent with the Constitution’s Commerce Clause. Defending the law, Donald Verrilli argued that Congress is regulating the interstate market for healthcare, and since everyone needs healthcare sooner or later, and insurance is the main method of paying for it, congress can require individual insurance coverage. “It may well be that everybody needs healthcare sooner or later,” Justice Scalia fired back, “but…everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”
It is a favored method of judicial counterargument, termed reductio ad absurdum, the Latin phrase referring to disproof by showing that the argument leads to absurd conclusions. Tuesday’s oral argument focused to a large extent on this style of argument with, for example, Chief Justice Roberts talking about required cell phone purchase and Justice Alito talking about requirements to finance burial services. There is a formula for addressing this common style of argument. Whether it will end up being successful or not remains to be seen, but the response was on full display in Tuesday’s arguments. Taking a cue from this current hearing, this post will take a closer look at the logic of the argument style and its response, as a guide to all lawyers who want to prevent your judge from taking the argument from where you built it to an absurd place.
Think on Your Feet, But Know the Formula
Arguing before the Supreme Court is clearly the Super Bowl for appellate lawyers. In this setting, the ability to nimbly respond and reframe the challenge is obviously critical: It demonstrates the defensibility of your argument to supportive judges, and may even play a role in changing the minds of less supportive judges. While few observers of this case expect Scalia, Roberts, Alito or the silent Thomas to come around to support the law (and even swing voter Kennedy is looking a little iffy), a good response to the broccoli argument and its kin was needed in order to shore up and possibly expand the law’s supporters.
Thinking on your feet and coming up with a quick response is a skill that is useful in front of any judge. The ability to take note of the species of argument and to know some simple formula for response can be very helpful. Various response formulas and approaches can be applied to a number of styles of argument, but let’s take the reductio ad absurdum as an example, and take a look at the structure of Verrilli’s response.
The Form of the Response
In the broccoli and related examples, Scalia and the other justices applied the reductio ad absurdum approach of refuting a theory by showing the absurd implications of that theory. The technique is prominent in Plato’s dialogues, making it part of the Socratic Method revered in law schools and judicial practice. The structure is to say:
- If your argument is valid, then a parallel argument must also be valid
- The parallel argument has absurd or indefensible implications
- Thus, your argument isn’t valid
One of my favorite argumentation textbooks, John Reinard’s Foundations of Argument, notes that it is a form of argument by analogy, just one that tries to refute rather than prove. “It is possible to respond to reductio ad absurdum attack,” Reinard writes, “by showing that the two lines of argument are not similar enough to warrant a legitimate comparison.” That is exactly what advocates tend to do with the argument: say that the situations truly aren’t parallel. But to take it a step further, I think that there is a formula for answering reductio ad absurdum that was followed to a large extent by Verrilli in answering the broccoli attack. I think there are four steps:
- Differentiate (The example doesn’t apply)
- Assert (This is what I’m saying)
- Deny (And this is what I’m not saying)
- Reclaim (Here is how your example would need to be different in order to apply)
In order to be responsive, it begins and ends with the absurd example, but in the middle it returns to the main principle that you are defending, separating it from what you are not defending.
The Government’s Response:
Scalia’s initial claim was that the government’s stance on commerce regulation could be taken to the absurd conclusion that the government could force everyone to buy broccoli. While continuous interruptions from eight of the judges drew the response out a bit, Verrilli did get through most of these steps.
1. Differentiate (The example doesn’t apply). Here is where Verrilli is immediate and surprisingly specific in separating the food market from the healthcare market:
That’s quite different. The food market, while it shares that trait that everybody’s in it, [1] it is not a market in which your participation is often unpredictable and often involuntary, [2] It is not a market in which you often don’t know before you go in and get what you need, and [3] It is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can’t pay for it.
Later, Justice Ginsburg helpfully adds:
[4] It is not a market where there is a cost that I am forcing on other people if I don’t buy the product sooner rather than later.
That differentiation, however, isn’t the end of the response. In order to avoid just bickering over the example, you need to return to the principle.
2. Assert (This is what I’m saying). After throwing out the broccoli, Verrilli emphasizes,
The test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce?
3. Deny (And this is what I’m not saying). That basic principle needs to be differentiated from the misperception that leads to the absurd example in the first place. As Verrilli clarifies,
The rationale under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand.
So, a belief that folks just need to eat more broccoli would not fit the government’s rationale.
4. Reclaim (Here is how your example would need to be different in order to apply). Verrilli did not get to this step before being pushed into other issues, but a nice way to end the response is to bring it back to the example, turning the reductio ad absurdum on its head. Here is how I would put it:
So, if most everyone eventually needed broccoli at some point in their lives, and if most everyone would end up getting that broccoli in some form or other whether they could pay for it or not, and if those who could pay ended up subsidizing those who couldn’t or chose not to pay for broccoli, then in that case, yes, Congress could rely on the Commerce Clause to require people to have a way to pay for their broccoli. None of that applies to broccoli, but all of it applies to healthcare.
Of course, there are a number of different approaches, and with someone like Scalia bearing down on you, few people will hit every note correctly. But in that context, and all contexts involving judicial, magistrate, or arbitration arguments, remembering some useful steps and formula can help guide your response. The moral of the story is this: If you are served broccoli from the bench, send it back. It is a delicious superfood, but in this case it is a bad argument.
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Posts in the Supreme Court Series:
- Practice the “Three P’s” of Oral Argument: The Example of Paul Clement
- Aim Your Oral Argument at Your Judge’s Motivating Principle
- Oral Arguments: Cut In To Your Case Before You’re Cut Off By Your Judge
- Don’t Let Your Judge Reduce You to Absurdity (This Post)
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Other Posts on Judicial Argument:
- Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”)
- No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They’re Neutral
- Sympathy for the Devil, but Empathy for Your Judge
- Remember, it’s a Sidebar, Not a Bar Fight: Reason With, Not At, Your Adversary and Judge
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Photo Credit: Wikipedia Commons