10 Whiniest Complaints From Justice Antonin Scalia After Obamacare Subsidies Win

Justice Antonin Scalia, the most abrasive conservative scold on the Supreme Court, spares no insult in deriding the Court’s 6-3 ruling today upholding Obamacare subsidies delivered through federal exchanges.


Scalia’s dissent reads like the whine of a schoolyard bully who is told to follow the rules yet keeps yelling that he wants it all, his way, and everyone else is wrong.

Conservatives had argued that a four-word phrase in the 900-page bill, requiring that government subsidies for insurance payments could only be offered through states, meant that the subsidies were illegal and had to stop. More than 6.4 million Americans, nearly two-thirds of Obamacare’s recipients, receive monthly subsidies averaging $272.

Here are 10 excerpts from Scalia's dissent, with which Justices Clarence Thomas and Samuel Alito also agreed. 

1. The other justices can’t read. Scalia said that the law was clearly written and not open to interpretation. “The Court holds that when the Patient Protection and Affordable Care Act says 'Exchange established by the State' it means 'Exchange established by the State or the Federal Government.' That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”  

2. There was no need to decide this. Scalia was insulted the Court even heard this case—not mentioning, of course, that it was his ideological red-state brethren who filed the suit to try to gut the law. “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it.”

3. Words no longer have any meaning. Scalia repeats this mantra more times than the key four-word clause appeared in the law, saying what matters most is not the spirit and letter of the law, but only the narrowest reading of the text: “Words no longer have meaning if an Exchange that is not established by a State is 'established by the State.' It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words 'established by the State.' And it is hard to come up with a reason to include the words 'by the State' other than the purpose of limiting credits to state Exchanges.”

4. The Court made a political, not legal decision. Scalia pretends the Court lowered itself to base political decision-making, as if the Court has never made a decision with political overtones: “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

5. The ruling ignored the law’s real context. You can always expect an I-know-best argument from Scalia. He argued the law’s fine print and context were not what the majority said, but instead that the law was designed to run around state-run exchanges. “I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections,” he said, building his case. “Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.” Having laid that foundation, Scalia vents, “Who would ever have dreamt that 'Exchange established by the State' means 'Exchange established by the State or the Federal Government'?"

6. It violated core legal principles. Scalia wrings his hands that core principles were violated by expansively interpretating the Affordable Care Act, as if he hasn’t ever done that in high-prolife cases where he won and wrote the decisions—such as gutting gun control laws. He gripes, “So saying that an Exchange established by the Federal Government is 'established by the State' goes beyond giving words bizarre meanings; it leaves the limiting phrase 'by the State' with no operative effect at all. That is a stark violation of the elementary principle that requires an interpreter 'to give dissenting effect, if possible, to every clause and word of a statute.'"

7. There was no drafting error. Scalia then turned to the structure of the law itself, saying Congress intended the states to operate insurance exchanges and as a result had language to that effect “not once but seven times.”

“It is bad enough for a court to cross out 'by the State' once. But seven times?" he wrote. "Let us not forget that the term 'Exchange established by the State' appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places?”

8. If Congress messed up, let them fix it. Then Scalia pretends that the Court is not to be bothered by practicalities of kicking millions of people off their health plans or that Congress will never do a quick fix—when the House has voted more than 50 times to repeal Obamacare. He wrote, “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges. If Congress values above everything else the Act’s applicability across the country, it could make tax credits available in every Exchange. If it prizes state involvement in the Act’s implementation, it could continue to limit tax credits to state Exchanges while taking other steps to mitigate the economic consequences predicted by the Court."

9. ​Red states can embrace Obamacare too. Scalia makes the same magical thinking claim about red states—that if they wanted to implement the law, they would. He ignores that more than one million people in both Texas and Florida signed up after their right-wing governors rejected it. Nonetheless, Scalia writes, “Worst of all for the repute of today’s decision, the Court’s reasoning is largely self-defeating. The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there. If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges?”

10. Worst sin of all. Scalia then accuses the majority of playing favorites; in other words, liking some laws despite what is supposed to be a judge’s greater fealty to constitutional principles and legal precedent. He concludes, “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.”

The Real Big Picture: Cold-Blooded Conservatives

Scalia can’t quite contain himself, but keeps protesting the ruling. He draws further analogies, calling the ruling “pure applesauce.” He writes, “Imagine that a university sends around a bulletin reminding every professor to take the 'interests of graduate students' into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has 'graduate students,' so that 'graduate students' must really mean 'graduate or undergraduate students'? Surely not.”

“Context only underscores the outlandishness of the Court’s interpretation,” he continues. “Reading the Act as a whole leaves no doubt about the matter: 'Exchange established by the State' means what it looks like it means.”

What’s outlandish here is not just that Scalia cannot get over his side losing, but that there are real-life consquences at stake while he’s fretting about legal ideology. Had the insurance subsidies been repealed in states where residents accessed Obamacare via federal websites, more than 6 million people would have seen their coverage costs explode—and likely would have become uninsured. Nationally, the average monthly subsidy is $272, but it ranges from $158 in Arizona to $536 in Alaska.

The ripple effect of insurance pools shrinking would have been higher premiums for those remaining. Several studies said they could rise by upwards of 50 percent, which would have pushed yet more people into the ranks of the uninsured. Many sick people currently in the midst of receiving health care would have faced a likelihood of stopping their treatments, or facing a health-caused financial crisis, or both. Scalia’s dissent barely acknowledges these possibilities, which is stunning.

When it comes to understanding Supreme Court rulings, it is important not only to read the dissents, but to look at what is not stated. In this instance, Scalia’s insistence on the narrow letter of the law and not its spirit, and his omission of real-life consequences is eerily cold-hearted. But it is not a unique view. It’s shared by a majority of the Republican right, including leading 2016 presidential candidates.

“The Supreme Court just upheld Obamacare yet again," Jeb Bush's campaign said in an email this morning. "This is the direct result of President Obama. He deliberately forced ObamaCare on the American people in a partisan and toxic way. And we both know that Hillary Clinton will be more of the same. We cannot let this happen.”

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