Roberts Fought Back Against Scalia in Sharply Worded Footnotes

The Court's opinion in King v. Burwell is full of footnotes directed at Justice Scalia's dissent.

WASHINGTON - OCTOBER 08: U.S. Supreme Court Associate Justice Antonin Scalia (L) and Chief Justice John Roberts talk while posing for photographs in the East Conference Room at the Supreme Court building October 8, 2010 in Washington, DC. This is the first time in history that three women are simultaneously serving on the court. *** Local Caption *** Antonin Scalia;John Roberts

Photographer: Chip Somodevilla/Getty Images

From the moment Chief Justice Roberts' majority opinion on the Obamacare case was published, the justice's clout with conservatives went into free fall. As Bloomberg reported, conservatives have declared him a cautionary tale in the dangers of failing to nominate the right judges (Roberts was nominated by President Bush). While he likely won't respond to his conservative critics, his footnote responses to Justice Antonin Scalia's scathing dissent offer a glimpse of how he would defend himself. 

While it was Roberts who wrote the court's opinion upholding Obamacare's subsidies, Justice Antonin Scalia's dissent was the more interesting read. In 21 pages, Scalia calls the reasoning of the six justices who ruled in favor the government "pure applesauce," and asks several rhetorical question to emphasize his disagreement.

Such as: "Who would ever have dreamt that 'Exchanges established by the State' means 'Exchanges established by the State or the Federal Government'?"

But some of Scalia's questions do get responses. In the footnotes of the court's main opinion, Roberts references "the dissent" several times to counter Scalia's arguments. 

In one section of the majority argument, Roberts writes that the Affordable Care Act calls for states to create an exchange, and that the secretary of Health and Human Services should establish "'such Exchange,'" implying that the state-run exchanges and the federal exchange "should be the same." In footnote 2 he writes that Scalia disagrees. 

From the majority opinion.
From the majority opinion.

Specifically, he sees an "error in this reasoning." (In the following passage, "it" refers to the Court.)

From Scalia's dissent.
From Scalia's dissent.

Roberts' responded:

From the majority opinion.
From the majority opinion.

Later, having established the ambiguity of the phrase "established by the state," Roberts writes that "we must turn to the broader structure of the Act to determine the meaning" of section of the ACA related to subsidies. Because the petitioners' interpretation of the law—that subsidies from the federal exchange aren't legal—would destabilize the insurance market, the Court was compelled to reject it. Again, Scalia was not having this.

From Scalia's dissent.
From Scalia's dissent.

"Who would ever have dreamt that 'Exchanges established by the State' means 'Exchanges established by the State or the Federal Government'?" Chief Justice Roberts, for one. Scalia writes that the Court's interpretation "causes the phrase to have no effect whatever," (at one point he writes "Words no longer have meaning if an Exchange that is not established by a State is 'established by the State'") and goes on to list seven other instances where the phrase "established by the State" appears. 

From Scalia's dissent.
From Scalia's dissent.

In footnote three, Roberts writes that "a statutory term may mean different things in different places ... Because the other provisions cited by the dissent are not at issue here, we do not address them." 

While Scalia managed to introduce the country to innovative insults like "pure applesauce" and "jiggery-pokery," Roberts did dispense his own brand of Scalia-level snark. At one point the Chief Justice writes that it's "implausible" that Congress meant for subsidies not to be available to the state, especially since that would lead to premiums rising inside and outside of the federal exchange. For this, he cites Scalia's dissent in NFIB v. Sebelius, in which the court upheld the health care law's individual mandate.

From the majority decision.
From the majority decision.

 

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