Let me explain something to you about judicial theory that has really had me confused. There is a theory called “originalism.” This is the idea that laws should be interpreted as they originally were. So the Constitution should be interpreted according to what people thought about it in 1788. I find it a totally indefensible theory, but there you go. There is another theory called “textualism.” This is the theory that the law should be interpreted only on the basis of its text. It doesn’t matter if we know that the legislators intended a law to be a certain way; if there was a typo in the legislation, that’s what the law means.
Based upon this, you would think that originalism and textualism would be opposites. But that isn’t the case. For one thing, originalism is a bit more complicated than what I explained above. There is the idea of original intent but there is also the idea of original meaning. So all these years that I’ve referred to Antonin Scalia as an originalist, I’ve been technically right. But it is more correct to say that he is a textualist. Of course, as I’ve discussed before, Scalia is nothing but an ideologue who simply finds however is necessary to go along with what he’s learned from listening to Rush Limbaugh.
The reason this all comes up is the most recent challenge to Obamacare, Halbig v Burwell. This is the case that is going to set all the poor people free in red states by not allowing them to get federal subsidies on the federal healthcare exchanges. It is literally based upon a typo in the law. But as Jeffrey Toobin explains in The New Yorker today, other parts of the law clearly indicate that the federal government did intend to provide subsidies when state governments didn’t set up their own exchanges. So the question is what a justice is suppose to do when there is a conflict in the law.
Do you question how Scalia will see it? He will almost certainly grab onto the typo and ignore the rest of the law. I know this (Everyone should!) because if a lawsuit came in saying that Obamacare was unconstitutional because Obama was a doo-doo face, Scalia would find some reason to agree. And that gets to the most fundamental thing about the Supreme Court that you should never forget: it is 100% political 100% of the time.
What is interesting here is not really Scalia. From my perspective, Thomas is actually more consistent. Scalia is kind of a loose cannon. On any given day, he might find anything at all. But just like Fox News viewers everywhere, if the issue has been publicized, he is dangerously consistent. So neither Scalia nor Clarence “Predictably Dark Ages” Thomas are interesting. It is John Roberts who fascinates. Because he is totally political, and explicitly so. Scalia wouldn’t admit that his decisions are political. The same is true of Thomas. But how could Roberts deny it?
John Roberts is the one person on the Supreme Court who clearly thinks, “How is this going to play?” That’s why he found in favor of Obamacare the first time. And that’s why I fully expect him to find for Obamacare this time. We will see, of course. But by the time this thing actually makes it to the Supreme Court (assuming it does), it wouldn’t be decided until this time next year. And at that point, if the Supreme Court found against Obamacare, there would be millions of people who suddenly saw their healthcare costs go through the roof for what would only be seen as partisan reasons.
I’ve argued before that Roberts is very concerned about how history sees him. In this case, it would possibly be about history seeing him as the Chief Justice who cast the deciding vote that caused the people to amend the Constitution to eliminate the Supreme Court. Because at that point, I don’t think anyone would consider the Court anything more than yet another partisan institution that simply votes according to the interests of the party that nominated them.
Jeffrey Toobin is interested in whether Scalia will stand by his textualist philosophy. I don’t think there is any real question. Somehow, Scalia will find a plausible way to justify doing whatever it requires to destroy Obamacare. It is possible that even Halbig v Burwell may be a bridge too far and he’ll side against it. But that will only be because he’s concerned about his reputation and he knows he’s not going to win. So it wouldn’t surprise me at all to see this case go down 7-2, with only crazy Alito and medieval Thomas voting to uphold.
But regardless of how the decision comes in or whether the Supreme Court decides not to take the case, it is all about politics. The decisions of Roberts and Scalia have nothing to do with the law and everything to do with their ideologies and their concerns about their own reputations.