March 5, 2015 Leave a comment
Okay, well, we don’t know how the court will yet decide, but just listening to NPR’s summary of oral arguments today had me yelling at my radio (and really, Antonin Scalia). Based on the fact that I think they are not totally in the tank politically, I think Roberts and Kennedy both sign on with the liberals for this to be 6-3. In reality, it should be 9-0. Actually, it should be 0-0– the court should never ever have taken this case. Talk about nothing to see here. Just the idea that even 3 justices (let alone a majority) would vote for the plaintiff gets me pissed off on how incredibly political those votes would be. Sure, the Supreme Court is a political institution, but there is still a place for little things like principle and the rule of law. What is so compelling and upsetting about the conservatives sympathy for the plaintiff’s efforts to gut Obamacare is the fact that virtually any way you want to interpret the case, the judicially conservative action is to uphold the Affordable Care Act! If you need a good summary of just what an open and shut legal case this is, the NYT editorial on the matter is excellent (I’m going to send it to my son as it explains much more succinctly than I can why I was shouting at NPR).
Alec MacGillis had a good piece on the matter and highlights why I so despite Scalia:
Antonin Scalia’s scorn for the government’s defense, despite the fact that he has in the past argued strongly for siding with administrative interpretations of ambiguous statutes, and argued that textual readings of laws should be “holistic” and “contextual” instead of “wooden” and “literal.”
The ultimate wooden and literal reading of the Affordable Care Act would be seizing on a few words to upend the law, thereby throwing millions of Americans off of health coverage and wreaking havoc in the health insurance market. But it appears as if that’s just fine with Scalia. The millions depending on the law for their coverage will likely need to depend on another justice to retain the economic security they have gained under Obamacare.
MacGillis’ piece also highlights that to find for the plaintiff in this case, would be in complete opposition to the Court’s earlier finding that made the Medicaid expansion voluntary, rather than mandatory (and has led to plenty of poor, but working Americans suffering without affordable insurance).
And here’s the quote from Scalia that had me yelling at my radio (in Dahlia Lithwick’s excellent summary):
Contemplating the catastrophic real-life outcomes that could happen if the petitioners lose—which nobody seems to want to talk about—Alito posits that “it’s not too late for a state to establish an exchange if we were to adopt petitioners’ interpretation of the statute.” Verrilli replies that, “In order to have an exchange approved and insurance policies on the exchange ready for the 2016 year, those approvals have to occur by May of 2015.” So, yes, it’s too late. Alito wonders if the states could be given extra time.
Scalia jumps in with a better fix: “What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue?”
People laugh. [emphasis mine] Even members of Congress may have laughed. Even Verrilli laughs, in his gravitas-y way: “Well, this Congress, your honor?”
Exactly, Scalia’s contention is so breathtakingly disingenuous that it is simply laughable. And finally, while I’m picking on Scalia, here’s EJ Dionne from a few months ago:
Textual interpretation, Scalia insisted, should be “holistic” and “contextual,” not “wooden” or “literal.” Courts, he said, should adopt the interpretation of a law that “does least violence to the text,” declaring that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”
If Scalia wants to be true to his own principles, can he possibly side with a convoluted reading of the law that apparently never occurred to him before? [emphasis mine]
Scalia’s principles? Give me a break. He’s got this reputation of being very conservative, but brilliant and principled. He’s not. He’s just very conservative. Full stop. Scalia reaches the decisions he wants to 99% of the time and that’s that. I would love for him to prove me wrong in this case, but alas, he seems to have become more partisan than ever in recent years. And, really, none of the justices have any more excuse than he for what would be a breathtakingly wrong and horribly partisan Supreme Court decision.