June 26, 2015
Justice Roberts's majority opinion in King v. Burwell stretches the idea of textual interpretation well beyond the idea of using context to understand terms. He interpreted "Exchange established by a State" to mean "any Exchange" including a federally created one, but he did so not based on various other texts of the law, but what his understanding of the "purpose" of the law was. This is a blatant misuse of policy to interpret the text. In his first ruling on Obamacare, he interpreted "penalty" to mean "tax" even though both were clearly distinguished in the law. Now according to Roberts and the majority, "established by a State" means "established by a state or the federal government". He concluded that Congress as a policy matter did not intend to restrict subsidies for health care plans in states created by the federal government since that would cause a "death spiral". But why not interpret the policy decision, based on the text of the law, to have created an incentive for states to create their own exchanges? But those questions and the answers to them are matters of policy, not legal or textual interpretation. Roberts wanted to salvage Obamacare, and interpreted the law to fit his understanding of its policy goals. This ad hoc approach to textual interpretation undermines the idea that Roberts is conservative as it relates to his judicial mindset, but worse, how is Congress ever to draft legislation and pass laws when they themselves won't know how the court will rule based on how they actually write the law? That's quite a problem for the future of our democracy. Worth reading is the WSJ editorial "The Political John Roberts" pointing out that the Chief rewrote the law "in order to save it."