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The Intellectual Dishonesty of John Roberts

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.

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10 Responses to “The Intellectual Dishonesty of John Roberts”


    It is Wehner reasoning that is dishonest. As Roberts pointed out in the decision, there is not the slightest hint, before or after the fashioning of this legislation, that its crafters intended the sort of distinction implied in the literal interpretation of this sentence, or even that ACA’s opponents were aware that a sentence with such intent even existed.
    In their bitter and dishonest logic, Wehner and Scalia are a match. Those who are furious with the notion that the American people have a right to fashion health care as a universal entitlement have never acknowledged limits to the methods they might use to thwart it.

    • SANDRA SHREVE says:

      Andy, I believe you are mistaken here.
      The intent of Congress was clear: it was for states to establish their own exchanges and to withhold subsidies from those who don’t. The Democrats believed at the time that all states will fall in line. More than 30 states refused to set up those exchanges, and the IRS as deus ex machina doles out said subsidies in those states with no exchanges.
      The question before the court was: are those subsidies legal? Did the IRS contravene the plain text of the statute?
      This was not a constitutional matter, but rather one of statutory interpretation. Roberts is beholden to the notion that the agenda of Congress must be saved. For that, he resorted to the original intent of the law. Tragically, he missed it. I guess he never heard of Jonathan Gruber.
      Your closing comment is immaterial.

    • JEREMY SCHAIN says:

      Actually, logic would dictate that the text means what it says, not what might be implied through interpretation by whoever is reading it. This is law, where words are supposed to have a definitive meaning, not art or interpretive dance.

      • BARRY MEISLIN says:

        “…where words are supposed to have a definitive meaning…”

        Not for this administration, I mean, “rogue regime”. In fact, whatever is declared, stated, or promised by Obama or his underlings, the opposite is almost certain to be the case.

        Count on it.

        And apparently, not for SCOTUS either…

        This is the grossest disappointment for anyone who believed that since Congress has consistently shown itself to be AWOL, that SCOTUS was the final line of defense, defending the Constitution—and the US itself—against the rogue regime’s relentless onslaught.

        File under: And the city of Shushan was perplexed….

  2. IKE BASMAN says:

    But Roberts wrote a superb dissent in the gay marriage case. And it’s simply misunderstanding the principles of statutory construction, textualism vs. purposiveism, to call Roberts the Derriida of the court. I don’t prefer his reasoning in King, but once he saw ambiguity in the state language, his argument for his reading of that text is devastating. And 5 other “Derridas” agreed with him.

    • STEPHEN PARKER says:

      Roberts’ Opinions in cases not critical to the Obama regime are well reasoned and well written. Roberts’ Opinions in the two Affordable Care Act cases are logic defying legal acrobatics, and poorly written, as well, particularly the first ACA Opinion.
      Roberts’ Opinions, in both of those cases, are the product of an extra-judicial element known only to Roberts and those whom he fears.

      • KENT LYON says:

        Obviously, Roberts fears Obama and the Left far more than he fears conservatives. Why, you might ask. Good question.


    It’s healthy that the comments here are no longer all blind agreement.

    Peter Wehner is among the most thoughtful of the bloggers here, but I too disagree with him about Roberts.

    Robert’s initial redrafting of the ACA was not justified. But, to my mind, his spin on this second challenge was neither unreasonable or unprincipled.

    He confronted a law that already intertwines hundreds of millions of Americans on the very serious matter of their health. King v. Burwell focused on a phrase. Even if the implementation of the law willfully contradicted that phrase, to invalidate the law on that relative triviality, would have been churlish, it would not have served the nation, or even the law’s opponents, like myself. And it would have horribly defaced the image of Republicans.

    At this point, if the law is to be voided that must follow a failure of its strongest aspect, not its weakest. The strongest is its aspiration to make health care affordable. The president sold it, first and foremost, as a way to stop “unsustainable” cost increases. If those nevertheless continue, the act will have failed. Though the accounting trick of socializing the costs will suppress the public’s immediate pain, the rise in the nation’s total health bill will be discernible. It will then either eat up ever more of the federal budget or force a deterioration in medical care. That will be unacceptable.

    In that event, replacing the law will be fair and justified. But then the Right had better have a workable alternative handy. (I have had one ready for decades.)

    • MICHAEL MAJOR says:

      Marc, you may be correct that there would be hundreds of millions of Americans affected by Roberts coming down on the other side of this decision, and you may be correct that Republicans’ image would have suffered. But the exact same things are true anyway – hundreds of millions of Americans now and in the future will suffer for the loss of the rule of law and Republicans’ image will suffer for having allowed it to happen.

  4. KENT LYON says:

    Roberts has confirmed America as Obamaland, the new Wonderland. Lewis Carroll would be impressed. So would Charles Manson.

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