On Thursday, the Supreme Court delivered another major victory to ObamaCare, voting 6-3 in King v. Burwell to uphold the subsidies at the heart of the sweeping health care reform law. Supreme Court Chief Justice John Roberts — appointed by George W. Bush, and once a beloved figure on the right — wrote the majority opinion, joined by the court's liberal wing and swing Justice Anthony Kennedy.
This isn't the first time Roberts has sided with the left on ObamaCare. And as a result, my fellow conservatives are comparing Roberts quite ignominiously to David Souter.
Souter, of course, was appointed by Bush 41, and turned out to be a huge disappointment to conservatives who were already tired of being let down by Republican SCOTUS appointments. (Looking at you, Earl Warren.)
But here's the thing: In the wake of Roe v. Wade, and after bitter fights over the Robert Bork and Clarence Thomas nominations, conservatives thought they had figured it out. The right created an impressive infrastructure and network to identify and promote conservative lawyers, clerks, and would-be judges. And along the way, conservatives settled on a judicial criteria that went something like this: Judges should interpret the law, not legislate from the bench. John Roberts was supposed to be the perfect example of someone who had come up through the ranks, and would render decisions accordingly.
The irony here isn't that a Republican-appointed Supreme Court chief justice has twice preserved the landmark legislation of Barack Obama. The irony — and heartache, for conservatives — is that on both occasions, Roberts has had to employ judicial gymnastics to rationalize his decision. In the King v. Burwell decision, Roberts chose to ignore the letter of the law — no matter how specious or unintentional the letter may have been — and instead, divine the law's intent.
The case hinged on a line in the Affordable Care Act saying that federal subsidies were only available for insurance plans purchased on "an exchange established by the state." Liberals have long argued that this was a typo, an honest mistake, an oversight. Perhaps. But it's also the letter of the law. And it's not the Supreme Court's job to rewrite the law or try and suss out its spirit.
Chief Justice Roberts and the court's majority ruled that despite what the law said about exchanges established by states, federal subsidies also applied to Americans in the roughly three dozen states where the federal government had stepped in to run the insurance exchanges. Roberts wrote:
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress plan, and that is the reading we adopt. [Roberts]
This is a perfectly reasonable thing to say. But it's very different from the conservative judicial philosophy Roberts is supposed to hold true to.
As Carrie Severino, chief counsel to the conservative Judicial Crisis Network and a former law clerk for Justice Clarence Thomas, said in a statement:
If "established by the state" doesn't mean "established by the state," next we’ll be seeing the administration defining "up" as "down" and "left" as "right." And if the chief justice is willing to join the court's liberals in this linguistic farce, it's time we admitted that our national "umpire" is now playing for one of the teams. [Judicial Crisis Network]
If you believe that the purpose of the court is to rule on what the law actually says, not what it should have said, then Roberts has failed. In that view, Justice Scalia's dissent makes perfect sense: "We should be calling this SCOTUScare."