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Scalia's Dissent Disproves His Own Reading of the Affordable Care Act

Yuri Gripas/AFP/Getty Images

If you had to distill Justice Antonin Scalia’s angry dissent in King v. Burwell down to one of its sentences, it would be this: "Words no longer have meaning if an Exchange that is not established by a State is 'established by the state.'"

He's referring, of course, to the four words at the heart of the Obamacare challenge that the Supreme Court rejected Thursday by a 6-3 margin: Did Congress mean to provide subsidies to Affordable Care Act consumers in every state, or only those in states that established their own exchanges? In Scalia’s mind, the meaning of those four words is so incontrovertible that six of his colleagues had to employ fallacies and subtle literary devices to contort "established by the state" into "established by the federal government."

“Understatement, thy name is an opinion on the Affordable Care Act!"
“Impossible possibility, thy name is an opinion on the Affordable Care Act!"
"Contrivance, thy name is an opinion on the Affordable Care Act!”

None of these sentences—all taken verbatim from Scalia's dissent—is literally true, just as Hamlet didn't literally mean that “woman” is a synonym for “frailty.” Scalia repeated this literary cliche three times suggesting even a mind as precise and supple as his grasps that, for descriptive purposes, things can be embodied by their descriptive qualities without rendering language meaningless.

As it happens, the language of the Affordable Care Act doesn’t literally say “an Exchange that is not established by a state is ‘established by the state.’” But it does say that where states don't establish their own exchanges, the federal government will step in and set up "such" exchanges. Basically, “established by the state, thy name is established by the federal government.”

"Exchange stablished by the government" and "exchange established by the state" aren't literally synonymous terms, but they so embody one another that the latter is meant to function as a perfect substitute for the former. That's why Scalia's new favorite sentence of the Affordable Care Act doesn’t really mean people in states with federal exchanges should be denied subsidies. In every other context, including his own dissent, Scalia understands that a sentence's meaning often arises from more than just the order and way its words are arranged on a page. We can gather from this that conservatives came within a hair's breadth of hobbling the Affordable Care Act on a pretense they know to be false. And we should thus celebrate their defeat.

For the purposes of destroying the Affordable Care Act, Scalia and two other justices were willing to cast aside this basic feature of language, and let millions of people, some of whom are desperately ill, lose their health plans.

Chief Justice John Roberts saved his Court, and conservatives from their own worst instincts, by refusing to succumb to this temptation, and allowing that "the meaning of that phrase may not be as clear as it appears when read out of context." His opinion is worth celebrating because six-or-so million people will get to keep their health plans, but also because he refused to abide the possibility that the Affordable Care Act, when construed as a whole, could possibly mean what the challengers (and Scalia) say it means.

As a result, we don’t have to worry about Roberts's ruling being used as a pretext to gut other laws, or as pretext for a Republican president to discontinue the subsidies on his own. It means conservatives will have to be content with grousing at Roberts, and renewing their commitments to repealing Obamacare through the democratic process, which should always have been their only channel. Thanks to Roberts, the question facing GOP candidates now isn’t “will you turn off the subsidies on your first day in office?” but “are you okay with losing your next election and GOP majorities in Congress if that’s what it takes to repeal Obamacare?”

If the answer’s yes, then: Insanity, thy name is Republican. Even though, literally, it is not.