The US Supreme Court is a supremely political institution, and no case illustrates that reality better than the just decided King vs. Burwell. Strictly on its merits, KvB should never have gone to the Court, because the plaintiffs’ case against the Affordable Care Act was completely without merit. It was an utterly disingenuous attempt to exploit an ambiguity in the language of the Act to contend that the legislation prescribed something different from what Congress clearly intended.   Had the Court decided differently, King vs. Burwell would have taken its place alongside Bush vs. Gore—indeed, ahead of Bush vs. Gore—in the annals of Supreme Court cases decided on crudely political grounds.

So, why did the Court even hear the case? Since there were just three eventual dissenters but at least four justices must make the decision to take a case on, one or two of the justices who eventually voted against the plaintiffs chose to listen to their arguments. That means either Chief Justice Roberts and/or Associate Justice Anthony Kennedy joined with the dissenters—Scalia, Thomas and Alito—to hear the case. My guess is that both Roberts and Kennedy are sufficiently clear-headed and principled to have quickly seen that the plaintiffs’ case was preposterous, but one or both felt obliged to make some concession to the right-wing’s obsessive hatred of Obamacare.   So, give them their day in court, but in the end, do the right thing.

In his majority opinion, Roberts cleverly used Scalia’s very own words to anticipate and refute Scalia’s predictable dissent. Scalia on more than one past occasion had affirmed the principle that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” In other words, you may have to look at the whole context to understand the intent of apparently ambiguous language.

In response, Scalia tried to wriggle out: ”[Context] is a tool for understanding the terms of the law, not an excuse for rewriting them.” Translation: “If Congress can’t write a law to say what they mean, that’s just tough.   We who disagree with Congress’s intent have every right to hold them to their mistake. “ I don’t think Scalia’s wriggle gets him out; nor does it set forth an admirable principle of judicial review.

So, Scalia, along with his partners Alito and Thomas, reveals himself once again to be a right-wing hack ever ready to trim, bend and stretch his arguments to serve his ideological and partisan preferences.   (The jurist Richard Posner has pointed to the “remarkable elasticity” of Scalia’s methodology.) I’m not saying that Scalia is nothing but a right-wing hack, but he certainly is that. Of course, all the justices are political creatures; they all have ideological preferences that shape their approach to the law.  But there are limits. Roberts is ideologically close to Scalito and Thomas, but his ideological predilections are apparently tempered by a respect for the integrity of the institution he heads and, one can assume, by a concern for the legacy he will leave as Chief Justice. He surely knew that this decision would bring down on him the righteous fury of true-believers on the right, including, but far from limited to, Scalia.


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