The dissenting three judges, which included Justices Clarence Thomas and Samuel Alito, accused Roberts of “rewriting” the law in order to save it from itself, and accused the chief justice of going way out of his way to do so, saying he engaged in “interpretive jiggery-pokery.”
Justice Antonin Scalia wrote the dissenting opinion, calling the decision a “defense of the indefensible.”
“We should start calling this law SCOTUScare,” Scalia wrote. And he didn’t stop there….here are nine highlights from Scalia’s dissent:
Here are nine highlights:
1. “We should start calling this law SCOTUScare…[T]his Court’s two decisions on the Act will surely be remembered through the years…And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and it prepared to do whatever it takes to uphold and assist its favorites.”
2. “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 meaning if an Exchange that is not established by a State is ‘established by the State.’”4. “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 Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal. (Impossible possibility, thy name is an opinion on the Affordable Care Act!)’”
6. “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.’ This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”
7. “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. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. They made Congress, not this Court, responsible for both making laws and mending them.”
8. “More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. ‘If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.’ In the meantime, this Court ‘has no roving license . . . to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.”
9. “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.”
