Today the Supreme Court of the United States -- SCOTUS -- released its decision in the case of King vs. Burwell. Once again, the Affordable Care Act has been upheld by the nation's highest court.
It wasn't even close.
It was a six-to-three decision. Typically conservative Chief Justice John Roberts, along with Justice Kennedy, joined the four liberal justices -- Kagan, Breyer, Ginsburg and Sotomayor -- to form the majority. Roberts wrote for the majority. Justice Scalia wrote for the minority, which included the reliably-conservative Justices Thomas and Alito.
Roberts wrote well, even eloquently at some points. "Congress passed the Affordable Care Act to improve insurance markets, not to destroy them." Find it on page 21, near the conclusion of the majority opinion.
If it had been me writing the majority opinion, that sentence would have been right up front. Even so, I'm not complaining.
Justice Scalia is eloquent in his dissent, too. But more than being merely eloquent, he is entertaining.
Starting at the beginning. "That is of course quite absurd. . ." he says on page 1 in reference to the majority's decision that the four words at the heart of this case -- "Exchange established by the State" -- mean that the Federal Exchange is empowered to act for a State Exchange.
He continues in the middle (see page 8 of the dissent). "The Court's next bit of jiggery-pokery involves other parts of the Act that purportedly propose the availability of tax credits on both federal and state Exchanges." "Pure applesauce" smites the reader two pages later.
Prose that is almost Shakespearean, if not Hemingway-esque.
There's much more. It's all supportive of the minority's theme that "established" can have only one meaning, which is to say that the States must all develop, build and run the ACA Exchanges individually and separately.
Please forgive the literary redundancy. After reading the two opinions, I feel a compulsion to say the same thing multiple times. Again. And again.
Back to the meaning of that one, single word. (There I go again.) Does it have only one meaning? Is its only possible meaning the one that Justice Scalia assigns to it?
I don't like to answer a question (especially my own question) with another question, but here it is: Did Justice Scalia open up a dictionary? Did he look for the meaning(s) assigned to the word by an authority other than his? (The last redundancy. Maybe.)
es-tab-lish 1. To make secure or firm. 2. To set in a secure condition or position <established them in the wholesale market> 3. To cause to be recognized and accepted <an invention that established their reputation>
That's an entry from my modest-sized Webster's II New Riverside University Dictionary. Justice Scalia certainly has access to much larger dictionaries which probably have even more meanings for the word that is at the center of the decision to which he so entertainingly dissents.
So, yes, there's at least one dictionary which provides a variety of meanings to the word "establish." This dictionary, at least, easily supports the concept that an Exchange "established by the State" is one that the Federal government has firmly built, has positioned in the marketplace, and is recognized within the State with the reputation of being there to implement the Affordable Care Act.
Republican state governors and legislatures have loudly objected to the Federal Exchange because it does those exact things in their States.
Their protestations disprove the plaintiffs' assertions.
Justice Scalia doesn't seem to agree with me.
He uses up a lot of pages to say why the majority opinion is really, truly, sadly wrong because it ignores the fact that some of the states use the Federal exchange instead of one that is built, implemented and operated solely by the state.
Nowhere in those pages does he explain why the word "established" must have a single meaning. He simply assumes the meaning that supports his conclusion.
Not to be nit-picky, but here's another shortcoming in Justice Scalia's dissent. This justice, almost more than any other, is renowned for his rock-solid reliance on "original intent," at least when it comes to constitutional matters.
If that is his guiding light for the law of the Constitution, then would it not also be his guiding light for law in general? In other words, would he not want to strive to uphold any law according to the law's intended goals and objectives?
In this case just decided, the court was presented with ample evidence to establish the ACA's intent of treating State Exchanges and Federal Exchanges in an equivalent manner. The evidence has come from a variety of sources -- Congressional as well as outside, mostly journalistic, observers -- making it compelling.
Justice Scalia, you can be very entertaining, and you apparently have a good sense of humor.
So, could you please explain to us why it is that you seem to not want to refer to a dictionary? And, could you please explain why your theme of "original intent" works sometimes, but not every time?
While we are waiting for Justice Scalia's explanations, those of us who are fans of the Affordable Care Act are entitled to a little bit of gloating.
As for those who are not fans -- well, accept the applesauce. Put some cinnamon on it; that makes for a good taste. Yes, I know, it's still applesauce.
But it's a healthy snack.
2 comments:
This is really an interesting paragraph,
"He continues in the middle (see page 8 of the dissent). "The Court's next bit of jiggery-pokery involves other parts of the Act that purportedly propose the availability of tax credits on both federal and state Exchanges." "Pure applesauce" smites the reader two pages later.
Is that the best vocabulary he can summon?
Thanks for a very good blog.
Old George says: I like the way you ruffled Scalia's feathers without being too hard on the old fossil.
Post a Comment