Supreme Court Justice Antonin Scalia has given up on persuading anyone. Instead, he’s going out in a blaze of fury. His dissent in King v. Burwell, the case that today saved a major portion of the Affordable Care Act, is one sputter and accusation of bad faith after another.
“We should start calling this law SCOTUScare,” Scalia sneered in an opinion joined by Justices Samuel Alito and Clarence Thomas, referring both to King v. Burwell and NFIB v. Sebelius, the 2012 case in which Chief Justice John Roberts also joined the liberals to uphold the act. Rather than merely detailing legal principles, Scalia wrote, “the overriding principle of the present Court [is that] the Affordable Care Act must be saved.” To that end, he added, “Impossible possibility, thy name is an opinion on the Affordable Care Act!”
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Getting there requires, in Scalia’s inimitable words, “interpretive jiggery-pokery,” in which “words no longer have meaning.”
Scalia all but called his colleagues idiots in analyzing their conclusion that the language of the law means the subsidies are legal in 50 states. “You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it,” he wrote. Many liberals would actually agree with that point, though for different reasons, and they were staggered that the Supreme Court chose to take the case at all.
To add insult to Scalia’s injury, his own words from the last time he dissented on the Affordable Care Act were thrown back in his face by Roberts.
That 2012 case turned on a different legal question, the constitutionality of the individual mandate and the Medicaid expansion. In Scalia’s dissent to Roberts’ opinion in the earlier case, he wrote, “Without the federal subsidies … the exchanges would not operate as Congress intended and may not operate at all.”
Today, in King v. Burwell, Roberts quoted those words back to Scalia to illustrate that “it is implausible that Congress meant the Act to operate in this manner,” meaning denying subsidies to people in states without their own exchanges. The implication was that Scalia himself had described the act one way when it suited his political ends, and the opposite way when it didn’t. It was subtle, but in his own way, the chief justice was giving as good as he got.
Irin Carmon