Court rules for Obamacare
Antonin Scalia’s dissent provides a model for interpreting the Constitution
One of the most important sets of documents in American history are the Federalist Papers. Written in newspapers between 1787-1788, these papers were meant to convince the 13 states that they should ratify the new constitution coming out of the Philadelphia Convention.
Alexander Hamilton wrote the majority of these 85 letters under a variety of pseudonyms. Maybe the most interesting and important quote from Hamilton came in Federalist 78, in which he wrote about the new branch of the federal government, the Supreme Court.
“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” Hamilton wrote.
This idea of the judiciary being the “least dangerous branch” has completely fallen apart in the last few decades.
This can no more clearly be seen than in the Patient Protection and Affordable Care Act case King v. Burwell that came to the Supreme Court last spring. Led by Chief Justice John Roberts, the 6-3 decision in favor of the Obama Administration is just another instance in a long line of poor decisions based on bad constitutional interpretation that expands the Supreme Court’s power into areas it should not be in.
Justice Antonin Scalia’s dissenting opinion in this case exposes the holes with the majority’s interpretation of this statute. Scalia, along with Justices Clarence Thomas, Samuel Alito, and (sometimes) John Roberts, hold to a distinct view of interpreting the Constitution, known as “originalism.” This view seeks to determine what the founders who wrote the Constitution intended by a specific phrase. This philosophy also seeks to minimize the interference the Court has in both the executive and legislative branches’ decisions.
Scalia, known for his witty and attacking dissents, does not hold back his disdain for the decision made by the Court.
“Under all the usual rules of interpretation, in short, the government should lose this case,” Scalia wrote. “But normal rules of interpretation seem always to yield the overriding principle of the present Court: The Affordable Care Act must be saved.”
Specifically, he is angered by the majority’s interpretation of the phrase “established by the State.”
“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State,’” Scalia stated. “It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words ‘established by the State,’”
He continues by explaining how the Court has overstepped its role, taking power away from both Congress and the American people.
“We must always remember, therefore, that ‘our task is to apply the text, not to improve upon it.’”
Judicial activism, the philosophy held by the more liberal justices on the Court, has all but taken over the American court system and maybe most importantly, the law schools. This view, which states that the meanings of concepts and words in the constitution are up for the justices to decide, has swept through the majority of elite law schools in the country and has given justices at all levels of government the backing to stretch the judiciary’s supremacy. The Supreme Court has modeled all of this, especially in this case, and Scalia recognizes it in his dissent.
“The somersaults of statutory interpretation they have performed will be cited by litigants endlessly, to the confusion of honest jurisprudence,” Scalia wrote. “And the cases will publish 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.”
The “least dangerous branch” vision Hamilton and the other Founding Fathers had for the Supreme Court has disappeared. It is now our job to elect men and women to public office who will rein in the judiciary and appoint justices at all levels who get out of the way of democracy.
Sutherland is the opinion editor.