Scalia tried to make the court a conservative stronghold. He failed. [View all]

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Scalia tried to make the court a conservative stronghold. He failed.

With Obamacare, the Justice's legislative vision has been dealt a death blow.

PostEverything
By Robert Schapiro June 26 at 6:00 AM
Robert Schapiro is Dean and professor of law at Emory University.

By upholding a key provision of the Affordable Care Act in King v. Burwell, a majority of the U.S. Supreme Court demonstrated that while the conservative revolution led by Justice Antonin Scalia may have had a strong impact on the court (and on the nation), it has not succeeded in winning over Justice Anthony Kennedy or Chief Justice John G. Roberts Jr. Thus, while Scalia has won many battles, he has not won the war. And in Thursday’s King v Burwell decision he lost a major battle.

Scalia has fought tirelessly both to limit the court’s focus in interpreting statutes (in other words, to look only at the letter of the law and not at the broader purpose of the legislation) and to limit the power of the national government. ... King v. Burwell seemed tailor-made to vindicate both goals.

The basic question in the case was whether the phrase an “exchange established by the state” included health-care exchanges established by the federal government in states that refused to create their own. The plaintiffs argued that “established by the State” means that health insurance subsidies could not be offered in states that had chosen to use the federal health insurance market instead of their own. This is, indeed, a very strict interpretation.

For Scalia, the answer was easy: “established by the state” could not possibly mean “established by the state or the federal government.” Had Scalia’s textualism prevailed, the decision would have gutted the ACA. Six million people in the 34 states where the federal government runs the insurance marketplace could have lost subsidies, and premiums could have skyrocketed. ... But that didn’t happen. Instead, Roberts wrote an otherwise unremarkable opinion that invoked traditional principles of statutory interpretation and examined the meaning of the phrase “established by the state” in context.