The Humpty Dumpty Court of King vs. Burwell

A dissent has no power except the power of its words and its logic. So Justice Scalia’s dissent in King vs. Burwell (joined by Alito and Thomas) is satisfying only in the rhetorical and intellectual sense. But it is so good that I’m highlighting it again anyway.

Here are some excerpts:

[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925)…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 somersaults of statutory interpretation [this Court has] 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 litigants 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.

Many more Scalia quotes from King vs. Burwell can be found here.

One of the strange things about the conservative reaction to this decision (and I count myself in that group) is that the SCOTUS ruling in King vs. Burwell probably hasn’t had all that much immediate practical effect on Obamacare. The Republican majority Congress was not going to let the state subsidies lapse, certainly not right away, even if the decision had gone the other way. Their proposed fixes involved a temporary preservation of the state subsidies, with various plans to change things to a more choice- and market-based system in the future if a Republican president were to be elected, plans that might or might not have come to fruition depending on how conservative the president would have been and how conservative the new Congress might be. So in practical terms nothing much has changed: the subsidies stand, and a new (and more conservative) Congress and president could still change things if they so desire.

The greater damage done by this decision is to the rule of law and our faith in the Supreme Court’s ability to abide by basic legal rules and exhibit sound legal reasoning. For many, that faith had already been sorely shaken and now the thread by which it had been hanging has been cut. You can see this in Scalia’s complaint that “words no longer have meaning” and “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."

To put it in legal terms, this case sets a terrible precedent.

Scalia wrote that we could rename Obamacare “SCOTUScare” now. I will add that we could rename the current Supreme Court, as well. It’s not “the Roberts Court” anymore, it’s “the Humpty Dumpty Court” instead:

"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all."

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

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