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The Humpty Dumpty Court of King v. Burwell

The Humpty Dumpty Court of King v. Burwell

Which is to be master — that’s all.

A dissent has no power except the power of its words and its logic. So Justice Scalia’s dissent in King v. Burwell (joined by Alito and Thomas) is satisfying only in the rhetorical and intellectual sense. But it is so good that I’m highlighting it again anyway.

Here are some excerpts:

[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925)…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…

…The somersaults of statutory interpretation [this Court has] performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. 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.

Many more Scalia quotes from King v. Burwell can be found here.

One of the strange things about the conservative reaction to this decision (and I count myself in that group) is that the SCOTUS ruling in King v. Burwell probably hasn’t had all that much immediate practical effect on Obamacare. The Republican majority Congress was not going to let the state subsidies lapse, certainly not right away, even if the decision had gone the other way. Their proposed fixes involved a temporary preservation of the state subsidies, with various plans to change things to a more choice- and market-based system in the future if a Republican president were to be elected, plans that might or might not have come to fruition depending on how conservative the president would have been and how conservative the new Congress might be. So in practical terms nothing much has changed: the subsidies stand, and a new (and more conservative) Congress and president could still change things if they so desire.

The greater damage done by this decision is to the rule of law and our faith in the Supreme Court’s ability to abide by basic legal rules and exhibit sound legal reasoning. For many, that faith had already been sorely shaken and now the thread by which it had been hanging has been cut. You can see this in Scalia’s complaint that “words no longer have meaning” and “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.”

To put it in legal terms, this case sets a terrible precedent.

Scalia wrote that we could rename Obamacare “SCOTUScare” now. I will add that we could rename the current Supreme Court, as well. It’s not “the Roberts Court” anymore, it’s “the Humpty Dumpty Court” instead:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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Precedents can kill and provoke wars. That is the “logic” of precedent is nihilistic. Any precedent is bad. It stops out consideration of the present case according to the proper INTENT of the law, to good law, to the common law. Natural Law. The Laws of nature and nature’s God.

To call something a bad precedent is really to say that perhaps there are bad precedent, and if so, we should indeed resort to more basic law to make JUDGEMENTS.

    Frank G in reply to bvw. | June 25, 2015 at 9:00 pm

    “To call something a bad precedent is really to say that perhaps there are bad precedent,”

    No, really? Tell me more

      bvw in reply to Frank G. | June 26, 2015 at 11:22 am

      Ruling by precedent is NOT judging, not judgement.

      That’s pretty much it.

      However since you asked I will expound. The day is ripe for such exposition. Judgement is a necessity of G-d’s orders to mankind. That men for up societies sufficient to establishment courts: that is that the society be ordered enough to form, to carry out and to enforce the good judgement of educated and honest men and women in the affairs of the society and upon all the disputes that may arise between humans, humans subject to the order of that formed society, aka government.

      Also among G-‘s orders to mankind are prohibitions against murder, kidnap, sexual immorality.

      Theft is a form of kidnap.

      The court made rulings yesterday that were a form of kidnap. The court made a ruling today that promotes sexual perversion, sexual immorality. There ample precedent for such debasing and ruining malicious rulings.

      But under natural law, that is the laws of nature’s God, there is no authority for such rulings.

      Today, good people are set with a awesome burden. They must disobey this ruling, they must take steps to rebel against it. For it is a ruling against G-d’s order.

      But there have in human history been many precedents. Dread Scott and all descendants of black Africans were once ruled, in a ruling whose logic so Justice Taney declared: full of precedent, to be sub-human, not worthy any more than animals of the protections of the society’s courts. Mere property, no greater than dogs.

      That ruling, in that it allowed kidnap, in that in denying access to the system of justice, was a abomination of law. Natural Law. The law of the Creator and Nature;s God. US law, by means at the least of the Declaration of Independence.

      It was precedent. It was not good judgement, it was a perverted judgement, a perverted judgment claiming to respect precedent.

      There is no good judgement in precedent. The precedent itself has to be judged. That used to happen. Edward Coke and Jefferson both employed it.

        platypus in reply to bvw. | June 26, 2015 at 3:08 pm

        I strongly disagree with your characterization of Dred Scott v Sandford.

        The issue presented to the court was whether Mr. Scott had standing to bring suit in federal courts. The Supreme Court answered no. It explained its ruling essentially as only fed citizens had access to fed court and blacks, whether free or slave, were not fed citizens. Whether you agree with the ruling or not, the decision did not come anywhere near (in my opinion) what these modern black-robed thugs did today.

        The main purpose of precedent is to ensure that cases follow the same rule of law and to assist in preserving judicial resources by not having to re-invent (re-litigate) the wheel. If precedent is wrong, it should be abandoned or over-ruled. If we do not have precedent to guide future courts, it is almost certain that virtually identical fact situations would result in opposite results based on different views of the law.

        The part that I think is improperly done today is the premise that the US Supreme Court is bound by precedent. To my way of thinking, the Supreme Court should be mildly guided by precedent but in no way should it consider precedent to be binding or limiting upon the cases it is deciding.

        I am certain that others smarter than me likely hold different views.

Scalia’s dissent comes ‘mighty close’ to describing the logic of the majority as being as in the same league as a Louis Farrakhan speech.

    platypus in reply to Neo. | June 26, 2015 at 1:34 am

    Calypso Louie is preferable to the Sick Six of SCOTUS because we don’t have to live under his ideas. We can ignore him if we want.

Until such time that and logic and the meaning of words can prevail, we are stuck in a “Looking Glass” world, where a current master, or ruler, may do as it wishes.

Scalia was quite correct when he said that words have no meaning. The one time concept of the so-called plain black letter meaning of a word is no more.

We have now but two choices, one of which is to hope for kind and generous masters; fat chance of that now!

Well then, I think I’ll be a girl today. I’d REALLY like to shower with the UT women’s volleyball team, so why not? Lather up girls, here I come!


John Roberts is nothing more than a ludicrous political hack masquerading as a jurist.

I hope history treats him with the contempt he deserves.

    Clinger in reply to Observer. | June 26, 2015 at 9:40 am

    While I align with your contempt for Roberts, I can’t help but wonder what the administration is holding over his head.

    It is, after all, their SOP.

      Callipygian1 in reply to Clinger. | June 26, 2015 at 10:01 am

      My thoughts as well. Sad that I immediately think of their digging up dirt on everyone to use as a trump card when necessary… It makes me think of how righteous Thomas, Alito & Scalia must truly be not to succumb.

        Matt_SE in reply to Callipygian1. | June 26, 2015 at 12:11 pm

        Even if Obama had dirt on those three, he wouldn’t use it for the same reason the Enigma codebreakers in England didn’t go wild with their discovery; it would give the game away.
        It’s only necessary to corrupt one or two members.

Yancey Ward | June 25, 2015 at 8:41 pm

You have to feel for Scalia- what he is doing must seem like trying to empty the oceans with a spoon.

    Aguila1952 in reply to Yancey Ward. | June 26, 2015 at 1:55 am

    Don’t forget Scalia’s allies, Thomas and Alito. They are under siege on the bench and it must be a tough slog to continue and not throw in the towel in the face of such despicable actions.

Subotai Bahadur | June 25, 2015 at 8:51 pm

The rule of law, the social contract, and the Mandate of Heaven are all gone. There literally is no need to have a Congress, because all of their functions are obsolete. They do not make laws, because any words they write are without meaning other than that given to them by the Executive. Send them home.

The courts have no function, because the ultimate decision lies in the Executive. Send them home too.

    Lady Penguin in reply to Subotai Bahadur. | June 26, 2015 at 7:49 am

    Agree. It’s clear that Congress has made itself irrelevant, and the Supreme Court is nothing more than a rubber stamp for authoritarianism.

    Think 1930’s Germany. The rise of Hitler. Long before the tanks rolled into Poland, and the bombs and bullets of World War ll, Hitler’s rise and consolidation of power was facilitated simply by his subversion and control of the German Courts, Academia, and transformation of the overall social constructs of German Society.

    For a refresher, watch the movie, “Judgement at Nuremberg”- again.

      Matt_SE in reply to Lady Penguin. | June 26, 2015 at 12:13 pm

      If a conservative get elected president, watch how quickly presidential powers need to be restrained! Suddenly, all executive actions will need the approval of Congress and SCOTUS again.

Very well said Neo-Neocon. Captures my mood and reasoning very well. I’m too mad to write things down intelligently right now though.

Horrible decision, a disappointment, but hardly a surprise.

Go back to when Roberts was nominated to the Court. Among all the glowing stories of his background and record were repeated accounts of how he went to great lengths not to overturn acts of the legislature or executive. His judicial philosophy was clearly that political questions should be resolved by the elected branches.

At the time, no one paid much attention – including myself, I pooh-poohed as much as anyone – because we controlled both House and Senate as well as the White House, and expected that to continue indefinitely.

– –

Of course, we should have anticipated the eventual loss of Congress and the White House and the odious acts the Democrats would commit. But we didn’t, and here we are.

Miss Harriet Miers much yet? In retrospect, it was a mistake to let David Frum get away with his personal vendetta.

    platypus in reply to Estragon. | June 26, 2015 at 1:38 am

    It’s hard to tell which one of the Zerocare decisions is the worst.

      Ragspierre in reply to platypus. | June 26, 2015 at 8:39 am

      I think this one, by far. This is a real game-changer, and may require a Constitutional Amendment to fully correct.

      More another time…

        Matt_SE in reply to Ragspierre. | June 26, 2015 at 12:15 pm

        The other one was a game-changer too. Remember that it allowed the government FOR THE FIRST TIME to mandate that you must buy a product.

        robinkaty in reply to Ragspierre. | June 27, 2015 at 2:02 am

        Not to be the wet towel on the Amendment suggestion, but it will be just more words that they will ignore just like they are ignoring the current ones. “No, we really mean it this time!” Nope, the Republic is dead, killed by nine in black robes.

    audax in reply to Estragon. | June 26, 2015 at 2:30 am

    Samuel Alito was nominated four days after her withdrawal and subsequently confirmed. So no I don’t miss Harriet Miers……

    Come to think of it, I recall Roberts was a pick to protect the authority of the presidency in a time of war. And he has, certainly. He’s protected it at home as well, against Congress, logic, plain writing, and all others.

You’ve got to love redistributive change philosophy: compensate and obfuscate. Then there are the semantics games of pro-choice doctrine. It is reminiscent of the spirit of environmentalism in lieu of conservation.

That said, where did they spend nearly $14 trillion dollars and counting?

On a related note, after losing control of their left-wing puppets in Egypt, failing to provoke a reaction from Russia following the undeclared wars in Libya, Syria, and Ukraine, but continuing with aggressive posturing on the Russian border, do they intend to start the next World War in Eastern Europe?

To think, they distracted us with a flag, with the added benefit of provoking a schism between North and South, while they carry on with business as usual.

So much for State’s rights. And, by “States” let me be clear.

I mean the individual sovereign entity that with the other States comprises the United States and not “State” as a morally relative lawless federalist morass as defined by the SCOTUS majority decision. Reading between the lines leads to a projection of blindness.

Something that disheartens me is that not one of the liberal judges had sufficient integrity to exhibit shame over this decision. Think about that. Four of our SCOTUS associate justices are doctrinaire partisans without ethical restraint. Four. Together with two justices who just want to be liked, that makes for a court that cannot be relied upon to render justice.

It was always said that a camel was a horse designed by a committee. To that we can now add that a giraffe is the word “horse” interpreted by the Supreme Court.

-Ted Bell

Callipygian1 | June 26, 2015 at 9:54 am

The Supreme Court was the cement that bound the bricks of this constitutional republic.

John Roberts reminds me of a noted quotation from the 19th century: “He is brilliant and corrupt; he shines and stinks like a rotting mackerel in the moonlight.”

Now how do you feel about all of the McCains, Grahams, etc. that quickly voted for Kagan & Sotomayer?

I believe that history will indicate this decision as being THE factor that guaranteed America’s morphing into a socialist country.

I was too young to understand the public loathing of the supreme court under Earl Warren, but I am beginning to. Supreme court? Nah, Supreme Cave is more like it.

I thought of the same quote from Humpty Dumpty when I read the decision. Below is an old post from another law blog that expands on the issue of Dumpty’s “mastery of words.” A quote from its summary: “…the real problem with Humpty’s view is related to authority; the fact that the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge.”

Please reconcile how a court can issue two rulings in the same day on “intent” in which in one case (ACA) the intent is paramount and the plain language of the law is irrelevant and the other case (TX Dept of Housing) the intent is completely ignored?


Sammy Finkelman | June 28, 2015 at 4:27 pm

I think the people who brought the lawsuit lost out because they did not successfully explain the intent of the bill drafters.

The way it looked to Chief Justice Roberts there was no way of understanding the bill except as an oversight.

It was impossible that ANYBPDY wanted things to work the way the bill was written.

But it wasn’t an oversight anmd careless drafting. In reality, the bill was very carefully drafted by Harry Rid’s back office
Nobody except Harry Reid and some close to him understood the exact terms of the bill, and he intended to change it by the end of 2012.

If Roberts had seen this as deliberate gamesmanship, and not a careless mistake, he might not have ruled the way he did.

    Sammy Finkelman in reply to Sammy Finkelman. | June 28, 2015 at 4:41 pm

    The people from Harry Reid’s office who were involved in the actual drafting of the bill refused to talk to the New York Times when they arn a story abut it a few weeks ago.

Sammy Finkelman | June 28, 2015 at 4:34 pm

This is why< I think, the PPACA was written the way it was:

First of all, they wanted to prevent, according to a New York Times report, was any middleman or broker making a profit on the marketing of the insurance policies.

So that would have been the reason for limiting the policies where some people could get a tax subsidy to those operated by a state (or the federal government or a non-profit)

Now there is another thing. They wanted to lay off the adnministrative expenses onto the states. The reason for that was probably to lower the CBO score for the bill and keep it under $1 trillion.

There was no serious effort to actually force states to establish exchanges.

How to get states to establish exchanges was a problem assumed out of existence!

Now there was another provision put into the bill by Senate Harry Reid’s office. This allowed the Secretary of HHS to establish exchanges. But this has not been understood or interpreted correctly.

There is nothing in the language of the bill that supports the creation of

Could we have another lawsuit here?

The Secretary of HHS was supposed to create turnkey operaations for anmuy state that did not establish an exchange and the exchanges he created were supposed to located in the state.

Read the law!

Not one massive web site with servers located in or near Washington, DC. But each exchange for each state physically located in that state.

Now what was really probably going on is that Harry Reid was creating a train wreck – but a train wreck that would not become apparent until 2013.

The intention probably was to amend the bill in the next Congress. But by the the CBO score wouldn’t matter.

But the Democrats lost control of the House of Represenatgives in the 2010 election!

This could also have been corrected in the reconciliation bill in 2010- the same bill taht removed the Cornhuskjer kickback and the Louisian purchase – by maybe adding a small spoenmding cut or tax increase – or maybe even without that.

But Harry Reid didn’t want to. His whole approach in Congress was to get as much spending out of Congress as possible that didn’t need to be “paid for.”