Thursday, June 25, 2015

The three hard-core thug-justices tried to bull their way through, but lost two crucial votes on the ACA subsidy decision


Justices Thomas, Scalia, and Alito (l-r) lick their wounds after being on the losing side of the 6-3 ruling upholding ACA-authorized subsidies for those purchasing health insurance on the federal exchange.

The Supreme Court on Thursday upheld a key part of the Affordable Care Act that provides health insurance subsidies to all qualifying Americans, awarding a major victory to President Obama and validating his most prized domestic achievement.

In the 6-to-3 decision, Chief Justice John G. Roberts Jr. delivered a sympathetic affirmation of what has become known as Obamacare, and his legal reasoning seemed to insulate the 2010 law against the legion of opponents who want to undermine the program before it takes hold in American life.

From the White House Rose Garden, Obama declared: “The Affordable Care Act is here to stay.” . . .
-- the start of Robert Barnes's report,
"Affordable Care Act survives Supreme Court challenge"

by Ken

Believe me, the last thing I expected to be writing about in the wake of the Supreme Court's decision in King v. Burwell is the intractability of Justices Nino, Clarence, and Sammy. I expected to be writing something more along the lines of "that halfwit son of a bitch 'Slow Anthony' Kennedy did it again," assuming that "Slow Anthony" and Chief Justice "Smirkin' John" Roberts would provide the fourth and fifth votes to torpedo the subsidies that everyone knows Congress intended to authorize for those purchasing insurance on the newly created insurance exchanges if they qualified under the financial conditions set forth.

As you recall, there really was never any question about the intent of the law, and nobody knows it better than the right-wing legal hired guns who found the loophole that almost brought the ACA down. It's just that one reference to "the State" that gave the legal hooligans their opening. Until then, despite the lies now being told by lying right-wingers, not a soul had suggested that there was ever any thought, let alone intention, to distinguish between the state exchanges and the federal one created in case any states failed to live up to their part in the plan.

Of course it was just a drafting error. Whoever wrote that one sentence forgot momentarily that the act defines "state" as meaning one of the 50 states. Nevertheless, the reference can't be read to refer to "states" in that sense as long as: (a) the reader speaks English, (b) the reader reads at, say, a third-grade reading level or higher, and (c) the reader isn't an ruthless ideologue who doesn't give a flying fig about the truth, but only about his own ideological psychoses.

The Supreme Court's standard procedure when there's ambiguity in a statute is to begin by looking at the whole thing, and in this case there's no possible question about its intention with regard to health-insurance subsidies -- unless you're a ruthless ideologue who doesn't give a flying fig about the truth, but only about your own ideological psychoses. And so for me, given the way the ruling went, that's the big news: that the three core thug-justices -- Justices Nino, Clarence, and Sammy -- declared today that this is exactly what they are: ruthless ideologues who don't give a flying fig about the truth, but only about their own ideological psychoses.

Looking back, I realize that my mistake was sticking too tightly to the premise that you can hardly go wrong by expecting the worst from the full five-thug-justice majority of the Roberts Court. But as the hard-core thugs know, "Slow Anthony" can be undependable in his thuggishness, and in this case he joined the Chief, who we all recall had previously crossed normal ideological lines to save the ACA the last time the Court had it in its clutches, in siding with the four moderate justices.

There is a small point of possible interest in that 6-3 alignment, if we bear in mind that as long as the chief justice is in the majority in a decision, he gets to assign the writing of the opinion. Probably this is a non-factor, since as noted the Chief has already provided a crucial vote to save the ACA. Still, if he'd been a fourth "no" vote in a 5-4 decision, the opinion would have been written by one of the moderates, and the designated writer might not have been as charitable to the complainants as the Chief was. That opinion might even have reflected poorly on the intellectual honesty of the people who have been pretending to believe that the law means to distinguish between state and federal exchanges with regard to eligibility for federal subsidies. Whereas with the Chief writing the opinion, we being by being told how clearcut the disputed mention of "the State" is, and only then learning that further investigation reveals that it may not be that clear-cut.

It remains to be seen what the hard-core Thug Three are or aren't getting in the remaining decisons to be announced for this term, notably the one on same-sex marriage, but these are famously sulky people, and they're sulking now. As perhaps they should be, since they understand that the judicial process, like any other process, has nothing to do with finding the truth, but only with notching the win. After all, that's how Justice Clarence got on the Court to begin with, when the Senate Judiciary Committee Democrats got suckered into trying to determine the truth of Anita Hill's claims about her former boss's sexual harassment, while the committe Republicans understoot that all that mattered was finding a way of destroying poor Ms. Hill and ramming the nominee onto the court. Latery Justices Roberts and Alito would slither onto the bench by lying brazenly about their commitment to the Constitution, the law, and respect for Supreme Court precedents, when all the time they intended to go as hog wild as circumstances would allow if they could sneak through their confirmation process.

Unfortunately, with the defections of the Chief and "Slow Anthony," they had their noses rubbed in the shame of defeat today. In theory, they should respect that, knowing as they do how the game is played. But I suspect they think they're the only ones who should be allowed to play the game that way.

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At 12:59 AM, Anonymous Anonymous said...

1) Re: "The Supreme Court's standard procedure when there's ambiguity in a statute is to begin by looking at the whole thing ... " Indeed. The SCOTUS knows the "whole thing" about the ACA, having gone through it thoroughly three years ago when it upheld the law's mandate ( It is NOT at all clear why SCOTUS agreed to take the current case at all. This is a classic case of blatant waste of taxpayer money. Where is that ghoul Norquist when he's most obviously needed?

2) Fat Tony Scalia is reputed to have lamented "words no longer have meaning." What a hypocritical pig. This is the same imminently impeachable ass-wipe who completely disregarded the following words, from the main text of the constitution, when ruling (Heller v. D.C.) on the meaning of the 2nd amendment to that constitution:

1) Article One (powers of congress), Section 8, paragraphs 15&16:
"To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;"
"To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline
prescribed by Congress;"
2) Article Two, Section 2, paragraph one:
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,"

Disclosure: I regard the ACA as just another example of corporate welfare.
I favored Medicare-for-all, e.g. HR676.

John Puma


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