Justice Antonin Scalia dissented powerfully from the atrocious Obamacare ruling.
As you know, yesterday we reached the exciting climax of Supreme Court Theater: The Sequel. It should surprise none of us that it ended in the same place at which the first drama ended. Part of my anger is that I allowed media hysteria to tempt me into hoping that the Supreme Court would do the right thing. Another part of my anger is the knowledge that many Republicans in Congress are thrilled with this ruling.
The minority opinion was written by Justice Antonin Scalia. Here are some highlights that are definitely worth reading:
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.
A few other highlights:
This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. 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. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”
Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.
The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it.”
And he closed:
The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by liti- gants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
While it is true that the Supreme Court is usurping authority from the Legislative Branch by “fixing” statutes, the truth is a little bit more sinister. The Supreme Court, in doing so, is placing itself in service to the Executive Branch. So, given all the secrecy and spying and underhanded dealings we have seen from this administration, against the American people and against journalists, how do we know that the Executive Branch hasn’t found a way to “encourage” the Supreme Court to assume this role?
A man who openly invents kill lists cannot possibly be above threatening or bribing or blackmailing a judge. I don’t know that he has done so but no American can be sure that he hasn’t.