I’ve written before about confirmation bias — the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories. But rarely have I seen it more on public display than in the case of the majority decision on the Affordable Care Act (ACA) by Chief Justice John Roberts.
To quickly summarize: In King v. Burwell, the Court, in a 6-3 ruling, determined that the language in the ACA limiting insurance subsidies to “an Exchange established by the State” really means “an Exchange established by the State or the Federal Government.” Justice Scalia’s withering dissent shows how neither the plain text of the Act nor the context of the text justifies the majority’s decision. In reading the majority opinion, one senses that even Chief Justice Roberts doesn’t believe his own arguments; that even he knows that the reason the words “by the State” were included in the Act was to limit credits to state Exchanges. As Justice Scalia methodically pointed out, “Under all the rules of interoperation … 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.”
And so it has been, twice now, thanks to Chief Justice Roberts. For reasons that only he must know, Roberts decided to take it upon himself to salvage the Affordable Care Act by rewriting it. He decided to become a legislator in order to repair a failing law, which is not the proper role of a Supreme Court justice. And in the process John Roberts decided to become the Supreme Court’s version of Jacques Derrida. (Derrida, a French philosopher, was the originator of a form of analysis known as deconstructionism, a theory that questions the ability of language to represent reality and emphasizes that a text has no stable reference or identification.)
In this case, Roberts decided that the clear meaning of words counts for nothing at all. They can be twisted and reinterpreted and reinvented to his heart’s delight, to the point that “an Exchange established by the State” means “an Exchange not established by the State.” All in order to save the Affordable Care Act. That was the Roberts mission.
Chief Justice Roberts succeeded in that mission, although in the process he did irreparable damage to his reputation. His decision was not just shallow but downright intellectually dishonest. He has to know he manufactured extraordinarily weak justifications to save the Affordable Care Act. And if he ever forgets that, he only needs to read Antonin Scalia’s devastating dissent to remind him.
