Justice Scalia is the Supreme Court’s real loser in Obamacare ruling

June 26, 2015
Justice Scalia testifies on Capitol Hill in Washington

Supreme Court Justice Antonin Scalia testifies before a House Judiciary Sucommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque

Chief Justice John Roberts’ majority opinion upholding subsidies on the Affordable Care Act’s federal exchange is a big gift to Republicans. Though he ruled against the expressed desire of every Republican presidential candidate — that the subsidies should be eliminated even if that meant the nation’s healthcare system would enter a death spiral — the chief justice greatly simplified their lives.

In the process, he made a powerful argument for deference to the legislature and the critical need to consider the goals of Congress and real-world consequences when interpreting statutes. By mustering five votes in support of his position, Roberts made a bitter loser of Justice Antonin Scalia and his rigid textualist approach to statutory interpretation.


Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young

In the weeks leading up to the decision, many Republicans had begun to realize that they did not really want the U.S. Supreme Court to deliver what they had asked. They scrambled to find a politically palatable solution to the loss of subsidies for millions that would avoid the collapse of the healthcare system without demonstrating politically toxic support for Obamacare.

The court’s decision put an end to that mad scramble and allowed Republican politicians to return to their unbridled, unthinking demands for repeal of the law. Republicans in Congress can continue to demand repeal without fear they will be satisfied — though they control both houses of Congress and could theoretically use a parliamentary maneuver (the reconciliation process) to repeal the law with a bare majority.

President Barack Obama, of course, will veto any repeal of the law and Congress would never muster the two-thirds vote required to override his veto.

The safety blanket that the court’s decision extended to Republicans will in fact outlast Obama’s term — even if he’s replaced by a Republican president. Here’s why: A lower court had ruled that the Affordable Care Act’s wording was ambiguous and, therefore, under longstanding precedent, courts should defer to the administrative agency charged with implementing the law. That meant the Internal Revenue Service — which had interpreted the law to allow subsidies for individuals buying health insurance through both state and federal insurance exchanges.

Had the Supreme Court just adopted the lower court’s reasoning, the next administration could have unilaterally changed the interpretation of the law. But under Roberts’ ruling, a future Republican president will no longer have that option — because giving such deference to an administrative agency was inappropriate.

He wrote that Congress surely would not have intended to commit a decision of this magnitude to the IRS, which lacks expertise in both healthcare law and policy. Instead the court gave itself responsibility for resolving any ambiguity. So, rest easy possible Republican presidents — an assertive court has made the decision for you.


The U.S. Supreme Court in Washington, May 20, 2009. REUTERS/Molly Riley

Beyond its political implications, the decision was heartening for its constructive messages about cooperative governance and the interpretation of statutes. The chief justice explicitly set out to interpret the language of the healthcare act in a way that would make the law work. He assumed that Congress meant to write a statute that would improve health-insurance markets — not destroy them.

Roberts emphasized “in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.” That meant that the court had to read all the language in the context of the overall statute and the goals Congress sought to achieve. It requires a pragmatic consideration of the effects of its ruling.

As the chief justice wrote, “the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

Too often, the Roberts Court has positioned itself as the adversary of the political branches, refusing to afford deference to legislative goals or to consider consequences when striking down, for example, campaign finance laws and the core of the Voting Rights Act. How refreshing to have a majority of the court pursuing cooperative governance by reading a statue to effectuate congressional goals.

With this ruling, the six justices who signed the majority decision delivered an emphatic rejection of Scalia’s rigid textualism, which elevates the literal words of a statute — no matter how inconsistent with the plain goals of Congress — above all else.

The debate in King v. Burwell centered on a single phrase, which authorized subsidies for qualified applicants who signed up for insurance through an “Exchange established by the State.”

Scalia barked that those words were clear and certainly did not mean an exchange established by the federal government. Yet, the law states that if the state does not establish an exchange, the federal government shall establish “such Exchange.” It is certainly permissible — and indeed a preferable meaning of the phrase for anyone interested in actually bringing about what Congress proposed — to read “such Exchange” as meaning the federal government shall establish the state exchange.

As Roberts explained, failure to read the language this way would render several provisions of the Affordable Care Act meaningless and lead to dire consequences directly contrary to the purpose of Congress.

That did not matter to Scalia. He was unwilling to move beyond the argument that the words “federal government” did not appear.

It is reasonable to suspect that Scalia’s distaste for the Affordable Care Act, which likely inclined him to bring it down rather than save it, made his textual argument easier for him to make here. The battle over the correct way to interpret statutes has been a defining characteristic of Scalia’s jurisprudence.

Thursday’s decision confirms that he has lost.


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If we could just pay our monthly “premiums” direct to health care providers, NOT billions-in-profit insurance companies, health care would be cheaper and more widely available.

THE LARGEST $$$ item on EVERY state budget after K-12 education is… MEDICAID which is free medical care for the poor, but medicaid has to be applied for and means tested, that’s why the few hospitals left open are always full of illegal alien kids with the sniffles, whose parents don’t pay then the costs are pushed on those who do pay. Gee, let me see, 14 million illegals times maybe a thousand a year that’s FOURTEEN BILLION a year burden on our health care system. Trump was correct, close that damned border let Mexico take care of their own- Slim Welu can pay for them, he’s the world’s richest “man”.

Posted by LetBalanceCome | Report as abusive


Posted by adamrussell | Report as abusive

Scalia dyes his hair?! Really?

Posted by Bookfan | Report as abusive

Scalia is a right wing partisan goof.

Posted by Solidar | Report as abusive

Scalia’s tantrum dissent is telling. He sounds like such a cry baby and sore loser. “If I had to sign on with this, I would hide my face in a bag.”

You should hide your face in a bag anyway, Scalia. No one is stopping you, trust us.

Posted by Solidar | Report as abusive

LetBalanceCome- Federal law prohibits illegal aliens (or undocumented workers) from obtaining Medicaid, so your “FOURTEEN BILLION a year” burden is nonsense.

And if GWBush hadn’t got us into a pointless war in Iraq that left the world even worse off, we’d have an extra $2 Trillion plus interest. So even if your fantastical $14B number were true, the one huge mistake of GWBush could have paid for that for the next 140 years had we just not invaded Iraq.

Posted by Simkatu | Report as abusive

Scalia’s always been a loser. He ought to resign (or be impeached).

Posted by Notasdumb | Report as abusive

LetBalanceCome complains: “If we could just pay our monthly “premiums” direct to health care providers, NOT billions-in-profit insurance companies, health care would be cheaper and more widely available.”

Yes. Single payer. Ask your GOP candidates where they stand on that. Good luck.

Posted by Solidar | Report as abusive

As the nation groans under the Second Gilded Age, the weight of suffering by “the rest of us” is finally beginning to reverse decades of unfairnesses. This ruling is one step forward out of the muck and mire of privilege, a bugle call to the Second Progressive Age.

Yes, people have a right to have access to health care, regardless of income or wealth. And today’s further ruling giving gay marriage the green light is one step further.

There’s even progress being made on racism and the police being the new Pinkertons.

Let’s hope other fundamental issues — like immigration — will also be advanced. And don’t forget affordable college. State universities were founded to provide college for all, not to force students into becoming lifelong debtors.

And the beat goes on. The next Presidential Election will certainly tell the tail.

Posted by dougriemer | Report as abusive

The SCOTUS rulings, yesterday and today, literally provide legitimate grounds for civil war in the United States. The Supreme Court does NOT have the right to say the law says this, but really means this. The Supreme Court does NOT have the right to dictate to the states what they will believe and/or practice with regard to homosexual marriage. It doesn’t make any difference what one person or another believes in this regard; the Constitution does NOT give SCOTUS the power to dictate social policy with threat of prison for not following the dictates of five men and women.

Posted by rlroll2 | Report as abusive

When is all is said and done, there will 35 million people with no health care coverage, premiums will be exhorbitant and costs will still escalate, like they have since 1984, when managed care first came of age.

Posted by zotdoc | Report as abusive

Hahaha. Bad week for conservatives. They prove to be on the wrong side of history….again. No wonder the GOP has lost 60% of its market share among new voters (age 18 -35) since Reagan’s time. GOP is out of touch, out of sync with America. They are in deep trouble, since all the paranoid old farts who kept them going… are dying off daily. GOP is a sell. I wouldn’t touch with Scalia’s hand.

Posted by Solidar | Report as abusive

Scalia should resign.

Posted by markhahn | Report as abusive

I’ve never seen any judge pout and whine as much as Scalia. If he’s that unhappy, he should just quit. He clearly resides on the loony fringe anyway.

Posted by Solidar | Report as abusive


Actually Congressional intent is a part of what the Supreme Court does. Moreover, even the ‘clear language’ crowd would be in no better position with their case, because clear language means taking the ‘entire’ context of the law, not cherry picking one line in isolation of every other reference, including countless portions of the law that would completely invalid were the ‘state’ reference to mean ‘non-federal’.

Posted by pyradius | Report as abusive

The Supreme Court is where political ideas, both good and bad, go to be tested in the fire of reasoned, pragmatic, respectful debate. Once settled, the idea’s worth is either established as the law of the land, or rejected. Justices Scalia and Thomas, et al, seem to have difficulty accepting the fact that their arguments are without sufficient merit to carry the day. The power and truth of a political concept lies not in its popularity or divine provenance, but in its fundamental fairness for the greatest number of citizens. Majority rule is tyranny without recourse to a judicial system that can eliminate restrictions on minorities based soley on irrational, emotional, religious or capricious tenets. Thank whatever god you worship, or the ‘force,’ for allowing reason and fairness to triumph over bigotry and repression.

Posted by MusicIsMagic | Report as abusive

When the intent does not match Scalia’s preferences, he argues the exact words must win out. When the exact words do not match Scalia’s preferences, he magically transports himself back in time into the minds of the law’s writers and announces their binding intent.

We’re ever so lucky to have him on our Supreme Court, what with those amazing skills…

Posted by BobN | Report as abusive

Scalia’s “textual argument” no doubt aligns him with the technocrats he no doubt hates. Well, we all have conflicts. “Such” a “State”!

Posted by watcher8 | Report as abusive

The United States and the Constitution are the losers!

Posted by hamptoner | Report as abusive

My hope is that I live long enough to see Scalia and his butt-buddy, Clarence “pubic hair” Thomas, exit the stage and leave America to a brighter existence sans arrogant hatred and right wing nonsense.

Posted by jw_collins | Report as abusive

The vanity and self absorption of Scalia is demonstrated simply, by fact that he obviously dyes his hair. Not a criminal act, just a sign of this man’s silly ego. Someone should film him at the hairdresser, take the tough guy wind out of his sails.

Posted by Bookfan | Report as abusive

All the court has done recently is give America what the Majority of Americans want.
God I love watching the heads of the right-wing explode.

Posted by Whipsplash | Report as abusive