National Review has been full of great commentary on King v. Burwell, and I’m sure coming days will see more. Already, frustration and disappointment is focusing on how the Court could have so patently ignored the wording of the law, as Justice Scalia argued, in order to find ways to uphold it. Chief Justice John Roberts is coming in for particular opprobrium, given his creative jurisprudence upholding the individual mandate back in 2012.
It may be a perverse type of solace to remember that Roberts and the other affirmative votes are simply upholding a long Court tradition of rewriting law and twisting it out of recognizable proportions. It might be said that only legal geniuses could act so completely contrary to common sense, but I’m sure no one on NRO would suggest such a thing. Bottom line is, if you want to understand SCOTUS’s decision today, not to mention other jurisprudential greatest hits like Roe v. Wade and Kelo v. City of New London, then just read my AEI colleague Charles Murray. His By the People has the clearest (and most infuriating) recounting of just when and how the Court went off the rails of textualism and defense of individual liberty. It all started in the Dirty ‘Thirties, and if Charles’s account (like Yuval’s outstanding post) doesn’t convince you that we long ago sloughed off the remnants of representative government, then possibly nothing will.