By now you’ve heard all about “jiggery-pokery” and “applesauce” and “Scotuscare,” the most Tweetable words from Antonin Scalia’s King dissent. But I beg you, don’t settle for the sound bites. Read the whole thing.
It’s just a nakedly political and partisan document, shamelessly and, perhaps paradoxically, shame-fully so; and while his reputation among conservatives will never suffer and he’ll be given a hero’s funeral on the right when he passes to his reward, this opinion, this single opinion, guarantees that far fewer liberals and disinterested court watchers who have up to now respected Scalia’s writerly flair and intellectual acumen will bother to show up.
So many things about it are striking that one hardly knows where to begin, but instead of starting with the document itself, let’s start here. The assessment of Scalia, even among liberals who disagree with nearly every opinion he writes, has been that he is the master of the written opinion. It long ago became a kind of fetish, the anticipation of reading Scalia’s opinions, whether they were majority ones, dissents, or concurrences. There was always an excess of intellectual and moral certitude, to be sure, but there was also wit and a kind of joyfulness of battle whether he was on the winning or losing side.
But that was then. This decision is something else again. Here, there is no wit. There is just bile. As you read along you can veritably see his carotid artery pulsing, growing; smell the sweat flopping out of the pores of his increasingly orotund person. And more to the point you can tell quite plainly: He saw killing this law as his life’s mission, the culmination of his years on this bench and the respect and deference he feels he has earned, the great moment when his arguments in chamber would pulverize the others’, crush them to dust. This was to be his indelible stamp. But he failed. The law lives, and he is livid.
The first thing that struck me here was the venom, the sharp and extremely personal contempt, that he clearly now feels for his Chief Justice. Here is the closing sentence of the first section of the dissent: “But normal rules of interpretation seem always to yield to the overriding principle of the present Court: the Affordable Care Act must be saved.”
That’s obviously a knock on Roberts, who voted with the liberals the first time around and now this time. And although we don’t yet know this, the speculation among the quasi-informed Thursday was that it was probably Roberts who persuaded Anthony Kennedy to join the majority. Scalia was obviously the intellectual leader of the minority, of which, according to my theory, Kennedy was originally a member. So this would mean that Roberts challenged Scalia directly for Kennedy’s vote, and even worse, that Roberts had the temerity to win this duel. I could of course be wrong about all this, but whether I’m wrong or right, there are shots at the Chief Justice sprayed throughout this opinion, all of it, like the “Scotuscare” barb, of a piece: that Roberts had a political motive in preserving the ACA.
And that brings us to Scalia’s projection. Reading the two opinions one after the other, it’s pretty clear which one is more politically motivated. I write that of course as a liberal, but I think it’s obvious in this case that Roberts’s measured prose, which considers the real-world impact of the law, would be more persuasive to a focus group of uncommitted citizens than Scalia’s, which is just a big long dyspeptic finger-wag that, by the way, makes no mention of the consequences of taking health coverage away from 6.4 million people.
His failure to discuss those real-world consequences becomes, at length, conspicuous, and revealing. It’s an old debate, whether justices should care about real-world consequences or only legal principle. But here, Scalia sticks so narrowly to legal interpretation that it’s ultimately he who comes across as the political one: If he can’t even grant those 6.4 million people one paragraph of his time, it’s pretty obvious what his agenda is.
But finally, and most of all, the opinion is dishonest. The crucial sentence here is this one, on page 18 of his dissent: “Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges.”
Wrong. It’s in fact so wrong that is it either an outright lie or, far worse in the case of this intellectual giant, ignorance. Numerous, numerous news reports have given us quotes from both Democrats and Republicans who worked on the bill saying no, we always meant state or federal exchanges, always. The gold standard here is Robert Pear’s New York Times account from May 25 of this year, an article for which he interviewed more than two dozen lawmakers and staffers from both parties. They told him—including Republicans, on the record—that it never even occurred to them that people who bought insurance through federal exchanges wouldn’t get subsidies.
In fact, it hardly occurred to them that states wouldn’t set up their own exchanges. This is weirdly naive on their part, the dears; they thought Republican governors and state legislators wanted to give their citizens health coverage. They thought maybe five or 10 states would refuse to establish exchanges. In the event, 34 did that, 34 governors and legislatures nodding and winking on the destruction of Obamacare. It was their lack of foresight on this question that produced the wording error on which the plaintiffs seized.
Scalia returns over and over and over to the fact that seven times in this 900-page statute it mentions only “states.” But so what? We have the ample testimony of people from both parties that this was a drafting mistake. Ample. If Scalia didn’t know about this testimony, he’s lazy. If he did and ignored it, he’s worse than lazy.
Hey, I’m not complaining. He could have written this in a way that, at least from a legal perspective, made some Obamacare supporters think twice. Instead, he just farted. His 98 credibility rating among conservatives won’t change, and neither will his 2 among die-hard liberals. But among that species of Court fanboys who try to avoid being too ideological and whose assessments of justices have a lot to do with how posterity remembers them, I bet he dropped in the last 24 hours from 60 to 30. And he earned every point.