I was with a group of teachers tonight who were attending a professional development seminar dedicated to enriching their understanding of the Supreme Court. Excited to be in town on the day the SCOTUS announced the decision in King v. Burwell, they enthusiastically asked when the panelist thought the next big decision – likely the same sex marriage cases – would be announced. Tomorrow? Monday? What did he think?
tortured asked myself this question Wednesday night, on the eve of a three-day push to get through the remaining seven cases before the end of the 2014 term. The same question came to me via text, Twitter, email, Insta-G, and in a meeting on big events happening in the Court those days. I even sat down and drew a speculative calendar listing what cases I thought would come down each day, a Supreme Court case fantasy draft (party of 1), if you will.
Go back through those texts, Tweets, conversations, and look at the fantasy calendar – you’ll never once see me speculate that we’d get the Obamacare case on the third to last day of the term. Not once.
And yet, like most SCOTUS prognosticators, I was surprised that, of all the cases in which disputes over the final drafts of the majority and dissenting opinions linger, King wasn’t the last case to be sent to the printer. The opposite turned out to be true, in fact, one look at the physical size and lengths of the two decisions proves it. The King decision is smaller and lighter than the other case that came out today about discriminatory housing practices in Texas. The majority opinion and dissent are proportionate in size, both totaling 21 pages in length, with no additional dissents or concurrences.
The last time Obamacare was in the Court, two dissents and one concurrence were written. The unanimity among the two camps this time was not at all what I expected for a case of this magnitude in which many of the same players came back to take a second stab at sending Obamacare into its own death spiral. If I were given this actual scenario as a hypothetical last night, I would’ve guessed Obergefell as the case we’d get compact, short and sweet majority and dissenting opinions on, not King. And I certainly would not have guessed it would be the Chief Justice writing the opinion for the majority.
But so it was as Chief Justice Roberts simply and succinctly wrote on behalf of the six in the majority: “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.” Less succinct and delivered with the finest, sharpest possible point to it, Justice Scalia, reading his dissent from the bench, said “could anyone say with a straight face that ‘established by the state’ means anything else?”[Insert superfluous exclamation points]
His final commentary on the majority’s erroneous decision sounded like a snub of what the majority and the institution of the Roberts Court (whatever that phrase now means) has made of this, the least dangerous branch of government. “The somersaults of statutory interpretation they have performed will be cited by litigants endlessly. 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. I dissent.” (Notice the purposeful omission of the word “respectfully” before “dissent” in that sentence.)
The legacy of the Roberts Court has definitively changed with this decision, and there are still five decisions coming over the next two days. Whether it will feel back to its old pre-King self or whether we’re on the precipice of a significant judicial pivot may not be revealed in such a short amount of time. Or perhaps that shift already has happened and is enough to ruin the summer of a spiteful, Eeyore-like Scalia.