Chief Justice Roberts on Obamacare in 2012: “It is not our job to protect the people from the consequences of their political choices.”
This line famously echoed in Robert’s majority the first time Obamacare came before the Supreme Court, pointing out that it is not the business of the Supreme Court of the United States to fix laws (good or bad) that Congress passes.
Three years later, Roberts made an about-face on this exact point essentially saying with his decision that Obamacare is a bad law and poorly written — so we will fix it.
It really is a fascinating thing. First we have Pelosi saying we have to pass the law to see what is in it. And then when we actually get to see and experience the incoherence of the law, Roberts declares that Congress’s stupidity is not his job to fix.
But then the problem became that the Senate didn’t actually have the votes to fix it properly or repeal it entirely. Congress discovered that the law which was passed (state exchanges only) was not the version Congress wanted (federal exchanges too), but the Senate couldn’t get the 60 votes they needed to pass the version they wanted, especially after the Republicans lost Massachusetts a couple years ago.
So good old Roberts gifted them what they needed to have the law that they should have written with this recent opinion. And for Robert’s act of judicial overreach and maneuvering, Scalia’s dissent was particularly scathing:
“Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges…The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude…
Just ponder the significance of the Court’s decision to take matters into its own hands. The Court’s revision of the law authorizes the Internal Revenue Service to spend tens of billions of dollars every year in tax credits on federal Exchanges. It affects the price of insurance for millions of Americans. It diminishes the participation of the States in the implementation of the Act. It vastly expands the reach of the Act’s individual mandate, whose scope depends in part on the availability of credit…
But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. 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.”
Scalia was particularly clear that the Supreme Court took it upon themselves to insert themselves into the legislative branch. Put another way, Chief Justice Roberts became the 60th vote in the Senate.