Bench Memos

Justice Scalia’s Dissent in King: Calling It “Jiggery-Pokery” When He Sees It

The dissent by Justice Scalia in today’s decision is scathing and has enough quotable lines to justify a separate post.

He identifies the fundamental problem with the majority opinion that the Chief Justice practically admitted in his own conclusion.  Scalia writes:

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. 

On the Chief’s appeal to context, Scalia points out that context “is a tool for understanding the terms of the law, not an excuse for rewriting them.”  But, as Scalia explains, the Chief’s opinion does not merely redefine the words “established by the State,” it effectively deletes them from the statute because the majority’s position is that they add precisely no meaning to the law.  Yet Congress used this apparently meaningless phrase over and over.  “It is bad enough for a court to cross out ‘by the State’ once.  But seven times?”

Scalia catalogues the normal canons of interpretation that have been discarded by the majority opinion and demolishes the notion that context renders the text of the statute unclear:

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. On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either under­standing of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous.   

He similarly skewers the majority’s appeal to the purpose of the statute: that the IRS’ interpretation must be upheld because the alternative would destabilize insurance markets. “If true, these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says.”

Scalia also notes that avoiding death spirals was hardly the only purpose of the statute, so it makes just as much sense to read the text to achieve the “purpose” of convincing states to set up exchanges. And he points out how limited the Court’s authority is to correct mistakes in drafting laws: it can only do so for exceedingly rare instances of true drafting mistakes or misprints.  But “[i]f 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.”

Finally, unlike the majority, Scalia recalls the proper role of our respective branches of government: Congress makes and repairs the laws (and they are equally binding whether they do this well or shoddily). The courts merely interpret them.  By getting that wrong, today’s decision “both aggrandizes judicial power and encourages congressional lassitude.”  And what’s worse, it “publish[es] forever the discouraging truth that 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.”


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