In a 6-3 decision, the Supreme Court found against the plaintiffs in King v Burwell — thus keeping the subsidies for Obamacare bought on the federal exchanges. I’m pleased, of course. The last thing we needed was the kind of disruption that finding for the plaintiff would have created. Chief Justice Roberts wrote the opinion and he made pretty much the same argument he did the first time Obamacare made its way to the Court, “The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.” In other words, the court is not there to be pedantic.
For those who don’t know, the question before the court regarded five words: “an exchange established by the state.” Obamacare provided subsidies for people buying insurance on these exchanges. The plaintiffs claimed that if a state used an exchange run by the federal government, then subsidies were not available. It turned out that this phrase was contradicted by other phrases in the law. So whichever way the court found would conflict with parts of the law. So the three judges that found against it — Scalia, Alito, and Thomas — were not being consistent. As usual, they were just being ideologues.
The result still bothers me. Scalia’s dissent is apparently sarcastic, talking about the clear meaning of the five words. It’s just the same as his broccoli comments last time. What it makes me think is that all you need to know how this unholy trinity will find in a case is to listen to what people are saying on right wing radio. But as we know from Ian Millhiser, this has generally been the rule. The Supreme Court is not a serious deliberative body. In general, it is a deeply conservative body that finally sees reason long after everyone else has.
The problem is that smart people can always find plausible sounding reasons for their opinions — regardless of how absurd those opinions are. Scalia claimed that “words no longer have meaning if an Exchange that is not established by a State is ‘established by the state.'” Matt Yglesias noted that words don’t actually work the way that Scalia claims. Yglesias provided the following amusing paragraph to demonstrate:
The good news about the ruling can be found from Brian Beutler, Game Over, Obamacare Haters. He noted that Roberts wrote the decision to close down this process of chipping away at Obamacare — looking for a few loose words in the massive law and try to use it to tear the whole thing apart. “The ruling thus combines a standard textualist mode of interpretation — a view to the statute’s full context to determine the meaning of isolated provisions — with a common sense analysis of the law’s structure into a mode of interpretation you might call heurism.” That’s a good thing.
Last July, the United States Court of Appeals for the Fourth Circuit, found against the plaintiffs in his case, stating that the phrase was “ambiguous and subject to multiple interpretations.” And that meant that the IRS had a right to deference regarding its interpretation. Given that the IRS has been given great latitude in interpreting lots of statutes, this seems like the reasonable interpretation. It should have stopped there. A 6-3 decision is fine — I’ll take it. But the fact that Scalia and company will allow this is an embarrassment.