Roberts’s Pragmatism, Scalia’s Precedent

Supreme Court Chief Justice John Roberts has for the second time helped preserve the Affordable Care Act, again by seeing sensibly through to what the intent of the law is. Not persuaded by plaintiffs’ contention that the four words “established by the state” forbid the federal government from providing subsidies in states that do not have their own exchanges, he also noted the consequences of cutting subsidies for millions of people:

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. … Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them … If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.

Antonin Scalia again has put himself at the center of a decision with the petulant language he has chosen – this time precedent-setting – in siding with Clarence Thomas and Samuel Alito in the minority: “We should start calling this law SCOTUScare,” he wrote, which apparently is the first time the term “SCOTUS” has appeared in a SCOTUS decision. There was also this: “The cases [concerning the ACA] 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.” Finally, Scalia departed from custom by concluding his dissent with a concise “I dissent,” forgoing the adverb that typically divides the declarative: “respectfully.” Though it could be argued his use of it in previous dissents may have implied its absence.

Dominic Preziosi is Commonweal’s editor. Follow him on Twitter.

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