The One About How Nine Justices Walk Into a Bar ….

Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. (Photo: Stephen A. Masker)

“Congratulations, Congress, you’ve literally sunk to the level of a punch line.”

Steve Benen

The proposition that Congress is a punch line strikes few as new material. Even the idea that a Solicitor General would take the shot is not so strange. Yet Steve Benen makes the point about Justice Scalia’s blithe view of the 114th Congress:

Scalia wasn’t kidding. “I don’t care what Congress you’re talking about,” he added. “If the consequences are as disastrous as you say, so many million people ­­ without insurance and whatnot – yes, I think this Congress would act.”

On a purely theoretical level, this is not ridiculous. Major new laws have routinely needed minor technical fixes for generations, and many of these corrections are intended to bring clarity to ambiguous phrases. Under normal circumstances, the King v. Burwell case wouldn’t even exist because Congress would have clarified the ACA structure years ago.

And, again in theory, if the Supreme Court were to decide in this case that the statute needs clarification, a sane, mature, responsible legislative branch would simply add a few words to the ACA law and ensure that consumers receive the same insurance subsidies they’re receiving now.

But that’s all the more reason to understand exactly why Scalia is wrong.

Perhaps it is Justice Scalia who is the punch line. Then again, neither is that news.

The underlying idea is that the justices must necessarily give appropriate, sober consideration to the issues they choose to hear, yet even by the most straightforward reporting, such as Nina Totenberg offers for NPR, King v. Burwell seems nearly a caricature of top-tier juristics. While Justice Breyer sought to parse the proposition of how a state establishes its exchange, Justice Kagan mulled the context of a small handful of words―five or six, depending on who you ask, and not even a full sentence at that―according to the larger body of the thousand-page law, and Justices Sotomayor and Kennedy considered the question of coercion―

Justice Sotomayor, looking at the law through a different lens, asked how the challengers’ reading of the law would affect the federal-state relationship.

“The choice the state had was, establish your own exchange or let the federal government establish it for you,” she said. “If we read it the way you’re saying, then … the states are going to be coerced into establishing their own exchanges.”

With all eyes on Justice Kennedy, he seemed to agree with Sotomayor’s point.

It does seem “that if your argument is accepted,” he told Carvin, “the states are being told, ‘Either create your own exchange, or we’ll send your insurance market into a death spiral.’ ” By “death spiral,” Kennedy was referring to the consequence of having no subsidies in 34 states, leading to a collapse of the individual insurance market.

That, Kennedy suggested, is a form of coercion. So “it seems to me … there’s a serious constitutional problem if we adopt your argument.”

Justice Antonin Scalia, a leader of the court’s conservative wing, jumped in to help Carvin.

“Do we have any case which says that when there is a clear provision, if it is unconstitutional, we can rewrite it?” Scalia asked.

―the best Justice Scalia can come up with is superficial politicking best suited to FOX News. Note how he presumes clarity when the whole case hinges on the statement being unclear, and, furthermore, asserts that clarity as clearly asserting the untenable.

That is to say, by reading this way, the law is coercive and deliberately constructed to fail, as Kennedy considered, and Scalia’s response was to require the law be read as such, so that he could argue against a straw man about Court prerogative and separation of powers.

Indeed, when it was Scalia’s turn to take after Solicitor General Donald Verrilli, Jr., the conservative justice maintained his straw man:

“Is it not the case,” asked Scalia, “that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says? Is that true or not?”

National Public RadioVerrilli replied that it isn’t just a question of onerous consequences, but that the states had no notice of disastrous consequences when they chose to let the federal government run the state exchanges.

“It’s not too late for a state to establish an exchange if we adopt” the challengers’ interpretation of the law, interjected Justice Samuel Alito. “So going forward, there would be no harm.”

Verrilli replied that the tax credits would “be cut off immediately,” and millions of people in many states would be unable to afford their insurance. Even if the court were to somehow delay the effect of its ruling for six months, it would be “completely unrealistic” to set up the exchanges by May of this year, as required by law, so that they could begin operating in 2016.

“You really think Congress is just going to sit there while all of these disastrous consequences ensue?” asked Scalia. How often have we come out with a problematic decision and “Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?”

Verrilli paused, eyebrows raised. “This Congress, your honor?” he asked, as laughter filled the courtroom.

It is as if everybody but Justice Scalia understands what is happening. Still, though, it seems an odd juxtaposition: To the one, the Court must give the issue its grave consideration; to the other, what is the gravity of a fallacy?

King v. Burwell seems a caricature unto itself.


Benen, Steve. “Antonin Scalia’s unintentional humor”. msnbc. 4 March 2015.

Totenberg, Nina. “Justices Roberts And Kennedy The Key Votes In Health Law Case”. All Things Considered. 4 March 2015.

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