There is one word that Antonin Scalia seems desperate to use but can’t: bullshit. The justice's dissent in Thursday's Supreme Court ruling upholding Obamacare tax credits for people on the federal exchange is delicious in its open rage.
It is clear Scalia does not think the justices who voted in the majority in King v. Burwell are dumb, or even mistaken. He thinks they knew the outcome they wanted, and made up whatever wacky legal justifications they could to get there. Scalia writes that "normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved." Later: "We should start calling this law SCOTUScare." But Scalia is restricted by the norms of the Court. He can't outright accuse his colleagues of bullshittery. He must say so in softer, yet more creative language. What binds the justice is a gift to the rest of us. Here’s a guide to the rage in Scalia’s dissent in King v. Burwell.
First, a sampling of the lovely words and phrases Scalia uses instead of the word bullshit:
- jiggery-pokery
- Pure applesauce
- curious
- outlandishness
- quite absurd
- defense of the indefensible
- maintain with a straight face
- This
- unheard of
- implausible conclusion
- pretense
- dismal failure
- somersaults of statutory interpretation
- words no longer have meaning
Yes, friends, words no longer have meaning, and laws will soon be written in emoji. It is a sad future for this once great country, but we might as well jump head first into it. In the spirit of Scalia's clear-eyed diagnosis of our decline, let us rate his angriest passages with fireballs.
As The New Republic's Brian Beutler explains, "The Court’s majority holds that the text at issue—'an Exchange established by the state,' the ACA states—'is properly viewed as ambiguous,' and plausibly 'refers to all Exchanges—both State and Federal—at least for the purposes of the tax credits.'"
Scalia, of course, disagrees: "That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so."
The rest of the dissent is a riff on this idea.
"Words no longer have meaning if an Exchange that is not established by a State is 'established by the State.'"
"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."
"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."
"Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that 'Exchange established by the State' means 'Exchange established by the State or the Federal Government'? Little short of an express statutory definition could justify adopting this singular reading."
"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."
"Faced with overwhelming confirmation that 'Exchange established by the State' means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation. None of its tries comes close to establishing the implausible conclusion that Congress used 'by the State' to mean 'by the State or not by the State.'"
"It is curious that the Court is willing to subordinate the express words of the section that grants tax credits to the mere implications of other provisions with only tangential connections to tax credits. One would think that interpretation would work the other way around."
"The Court persists that these provisions 'would make little sense' if no tax credits were available on federal Exchanges. ... Even if that observation were true, it would show only oddity, not ambiguity."
"Least convincing of all, however, is the Court’s attempt to uncover support for its interpretation in 'the structure of Section 36B itself.'"
"The Court finds it strange that Congress limited the tax credit to state Exchanges in the formula for calculating the amount of the credit, rather than in the provision defining the range of taxpayers eligible for the credit. Had the Court bothered to look at the rest of the Tax Code, it would have seen that the structure it finds strange is in fact quite common."
"The Court has not come close to presenting the compelling contextual case necessary to justify departing from the ordinary meaning of the terms of the law. Quite the contrary, context only underscores the outlandishness of the Court’s interpretation. Reading the Act as a whole leaves no doubt about the matter: 'Exchange established by the State' means what it looks like it means."
"To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the contrast between provisions that say 'Exchange' and those that say 'Exchange established by the State,' gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used."
"If that is all it takes to make something ambiguous, everything is ambiguous."
"Compounding its errors, the Court forgets that it is no more appropriate to consider one of a statute’s purposes in isolation than it is to consider one of its words that way."
"This is what justifies going out of our way to read 'established by the State' to mean 'established by the State or not established by the State'?"
"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? And wouldn’t that outcome satisfy two of the Act’s goals rather than just one: enabling the Act’s reforms to work and promoting state involvement in the Act’s implementation? The Court protests that the very existence of a federal fallback shows that Congress expected that some States might fail to set up their own Exchanges. Ante, at 19. So it does. It does not show, however, that Congress expected the number of recalcitrant States to be particularly large. The more accurate the Court’s dire economic predictions, the smaller that number is likely to be. That reality destroys the Court’s pretense that applying the law as written would imperil “the viability of the entire Affordable Care Act.”
"Perhaps sensing the dismal failure of its efforts to show that 'established by the State' means 'established by the State or the Federal Government,' the Court tries to palm off the pertinent statutory phrase as 'inartful drafting.'"
"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?"
"If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it."
"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."
"Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress 'meant [it] to operate.'"
"It is not our place to judge the quality of the care and deliberation that went into this or any other law. ... Much less is it our place to make everything come out right when Congress does not do its job properly."
"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."
What a parody today’s decision makes of Hamilton’s assurances to the people of New York: “The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment.”
"We should start calling this law SCOTUScare."
"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years."