For all the liberal bloviating about the new direction of SCOTUS under CJ Roberts, today’s opinion in King v. Burwell demonstrates that essentially, nothing has changed. The court is still forced into feckless pragmatism whenever a conservative principle is at stake, but is perfectly willing to venture beyond the expressed will of Congress in order to advance liberal agenda items on their own initiative.
Today’s decision, upholding the Obamacare subsidies in states that did not set up an exchange, is simply indefensible as a matter of statutory interpretation. There is no other way to put it – nothing in any sort of legal training from any reputable university would have led anyone to believe that the Court would have been permitted to essentially rewrite the statute the way they did today. And make no mistake, that is exactly what they did, in refusing to apply Chevron deference and merely stating that henceforth Obamacare says something different than what its actual words contain.
In many ways, this decision (which was joined by both Roberts and Kennedy) is the most irresponsible arrogation of power by the Court in decades. When the Roberts court upheld Obamacare initially as a tax, despite the fact that neither side had argued or claimed that it was a tax, I actually found that to be a defensible decision and generally respectful of the idea that SCOTUS should only invalidate a Congressional statute under relatively extreme circumstances. However, what the Roberts court did today was to essentially elect themselves to the positions of both Congress and the President and amend a duly passed statute on their own initiative. This was a blatantly unconstitutional power grab and Roberts’ decision to author it adds another stain to the legacy of George W. Bush.
No other statute in history has been the beneficiary of such blatant judicial largesse. As Justice Scalia noted in dissent, the issue now goes beyond Obamacare itself, and goes to the heart of how Courts are supposed to interpret statutes. In twisting itself into somersaults to uphold Obamacare, SCOTUS has forever blurred and/or destroyed canons of statutory interpretation, leaving nothing but absolute guesswork for lawyers who come along in this decision’s wake, attempting to determine how a given statute will be interpreted for their clients:
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. 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 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. I dissent.
One wonders how many decades of electing Republicans to the Presidency are needed before the Supreme Court finds itself reformed in all the many ways we are continually promised by Republican candidates. One further wonders how long we will continue deluding ourselves into believing that it will ever actually happen.
More importantly, John Roberts has now been fully exposed for what he is – a craven, unprincipled hack, determined to protect the interests of his own power and his institution’s prestige over and above the interests of doing his job well and honestly. In other words, he’s basically the [mc_name name=’Sen. Mitch McConnell (R-KY)’ chamber=’senate’ mcid=’M000355′ ] of the Supreme Court.