Scalia Excoriates Roberts Before the Court

By Stephen Collinson, CNN

28 June 15

t was Roberts vs. Scalia in a legal heavyweight tussle for the ages.

In one corner: conservative Chief Justice John Roberts. In the other: veteran fellow conservative Justice Antonin Scalia. The prize: the fate of Obamacare, centerpiece of the most liberal presidency in decades.

And for the second time, Roberts won on points.

Roberts's ring was the ornate Supreme Court chamber fringed by towering Corinthian columns and red velvet curtains, one of the few venues left in American public life not penetrated by the modern age -- no television coverage, no tweeting, no selfies. The stands were the wooden seats packed with an electrified audience of lawyers, reporters and members of the public.

So the monumental ruling was handed down Thursday in similarly hushed conditions to the great Supreme Court judgments of history -- in contrast to the pandemonium that erupted on the marble plaza outside. There, Obamacare supporters exploded in cheers and started chanting "ACA is here to stay" as news flashed that the law had been saved again.

Roberts led the majority as the court ruled 6-3 to uphold the manner in which the Obama administration is interpreting the law. Doing so preserved health insurance subsidies for more than six million Americans.

The move followed Roberts's casting of the deciding vote in a narrower 5-4 decision in the previous challenge to the Affordable Care Act in 2012. That opinion preserved the most important aspect of Obama's domestic legacy and boosted his reelection campaign.

This time, Roberts again joined with mostly liberal justices to support the law -- in the process infuriating conservatives who revile Obamacare as an overreach by the state and see his double rescue of the law as a disavowal of values they believed he held when he was appointed by Republican President George W. Bush.

Despite being couched in the stately conventions of the court, the explosive legal argument that unfurled between Roberts and Scalia on Thursday amounted to genuine courtroom drama.

Roberts came out slowly, offering a history of the law that has repeatedly defied efforts to kill it, to build a sober rationale for his bombshell judgment.

On one side of him sat Scalia, leaning back in one of the big black rocking chairs the justices use on the bench and looking as if he might at any minute launch himself onto the court.

To his left sat Anthony Kennedy, who many legal pundits had expected to be the star of the show by casting the deciding vote in the case. This in itself would have been dramatic because Kennedy issued his own forthright dissent to the decision that upheld Obamacare three years ago.

Roberts argued that the clause at the center of the suit -- which could be read to say that only those with insurance policies purchased on state exchanges qualify for government subsidies, and not the millions in federally run markets -- was ambiguous and needed to be viewed in the wider context of the law.

"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," Roberts wrote in his opinion.

While Roberts was presenting a legal argument, there was no hiding the political context, and he permitted himself a grumble at what he said was "inartful" drafting of the law that forced his court to take up the contentious law for a second time. He also took a shot at the messy legislative device known as "reconciliation" that Democrats used to push the law through a sharply divided Congress in 2011.

When he was done -- in the process, handing a huge victory to Obama, who has made no effort to hide his disdain for the Roberts court -- the Chief Justice casually mentioned that his colleague would offer a dissent.

"Indeed" Scalia replied, in his booming Shakespearean tones, sparking laughter in the court and hinting at the explosive repudiation of the Chief Justice's position he was about to unleash.

If Roberts came out jabbing, Scalia, a pugilistic master of language and a former student debating champion, threw haymakers from the start, slamming the reasoning of the majority opinion as "eccentric," "upside down," as "interpretative jiggery pockery" and "wonderfully convenient."

Cloaked in the dignified language of the Court, Scalia effectively accused Roberts, Kennedy and fellow justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor of saving the ACA for political reasons.

"Today's opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty," Scalia steamed from his spot just a couple of feet away from Roberts, who looked out at the court impassively.

Perhaps seeking to defuse the awkwardness with a dose of snarky humor, Scalia did offer the line, "we should start calling this law SCOTUScare," playing on the initials of the court and drawing a chuckle from Roberts.

But Scalia left no doubt about his thoughts on a judgment that he said set a disastrous precedent that would echo down the years.

"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. I dissent," Scalia said, his words ringing in the air as the justices left the bench at the end of a historic half hour.

If nothing else, Scalia's stunning intervention left no doubt that the charismatic 79-year-old, named to the court by President Ronald Reagan, has no intention of hanging up the gloves any time soon in his long fight for the strict interpretation of laws and the Constitution.