Has Roberts actually been driven toward moderation by his contempt for Scalia?
I think Roberts is a good justice. He’s conservative - which means he isn’t always going to go the way liberals would like, but he respects the law, yet is pragmatic, and looks toward the long term future of the country (you could say that he is interested in his legacy if you wanted to put a selfish spin on it). I think his move to the center is less a move to the center than a pragmatic application of law. He seems ethical and worthy of respect.
No justice wants to have made a Dred Scot decision and have law students study the stupidity of it 100 years from now.
(But he does seem to have a stick with Scalia’s name on it specifically for poking at him when he writes).
Thank you for the terrific quotes!
For the record, here’s a corroborating cite …
There are also two citations that quietly hoist Scalia and his fellow dissenters, Justices Samuel A. Alito Jr. and Clarence Thomas, with their own petards. Roberts quotes a majority opinion written last year by Scalia stating that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”
And arguing that “it is implausible” that Congress meant to create health care exchanges without subsidies, given the likelihood that they would collapse under those circumstances, he quotes a dissent that Scalia, Thomas and Alito wrote in the 2012 Obamacare challenge (joined then by Kennedy): “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”
Shouldn’t any judge guilty of such obvious partisanship, hypocrisy, or incompetence be immediately dismissed?
ETA: Your second quote isn’t a Scalia quote, it’s a wonderful juxtaposition of Scalia’s 2014 quote compared to Roberts’ almost identical quote yesterday that Scalia apparently had a big problem with! 
Just a bit of clarification on some confusion, both on my part and some of the media reporting, on exactly who said what.
In this current case, King v. Burwell, Roberts spoke for the majority when he said:
“In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
Scalia jumped all over that, claiming that “the Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.”
Yet just one year ago, in Utility Air Regularory Group v. EPA (2014), Scalia said this:
“… in this respect (as in countless others), the Act is far from a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in mind the ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme’.”
The hypocrisy shines like a beacon.
I’ve not read the decision, but the parts of Roberts’ decision that I’ve seen quoted actually seem to adopt a deferential judicial philosophy, of respect for the intention of Congress. In particular, the theme that ambiguous words should be interpreted in light of Congress’ overall intention, to make the law function consistent with Congress’ intention, strikes me as very deferential. Roberts seems to view the Court’s role as to carry out the intention of the elected legislators, as much as possible when the wording of the statute is ambiguous.
Wow. That guy’s a moron.
I don’t think that makes him very different from any of the other justices or previous justices.
The main dispute is over how far outside the four corners of the text to look for information that helps you resolve ambiguity. But Roberts didn’t actually look that far outside the statute in this case.
The plaintiffs’ argument actually required not going anywhere near that far out - or even to adjacent paragraphs, for that matter.
I agree. I’m just commenting on the idea that I’ve seen some conservatives advance, that Roberts is not a dependable conservative judge. I would say that the reasons he used in this decision fit what many conservatives say is the proper function of a judge: to interpret the statute the way the legislature intended, without taking partisan political considerations into account.
Not entirely sure what your point is, but I’m still kind of amazed about the basic underlying hypocrisy of both the plaintiffs and some of the justices in this whole case. All I can say about Roberts is that I strongly disagree with many of his past rulings but damn, when push comes to shove the man has at least some integrity. The fact that one cannot say that about some of the others should be really disturbing.
He’s a Jurist first and a conservative second. That’s what’s paid to be, isn’t it?
If he was a politician first, he could just phone in his vote. If repeated by the others the entire point of the SC would be lost.
Lets not lose sight of the fact this was a largely bullshit case brought in order to try and solicit a political response.
Roberts cited two studies that predicted what might happen should King prevail. And he used those studies to support his argument that Congress couldn’t have meant to do that.
That would be the RAND corporation on the first study (pdf link) and the Urban Institute on the second (pdf link)
I find it a bit troubling for the Court to base the logic of an opinion in part on someone else’s opinion of what might happen should they rule the other way.
In today’s other case (Johnson v. United States) the Court struck down part of the Armed Career Criminal Act. Should they have instead upheld it because reasonable people might predict dire consequences (a violent white supremacist might be released earlier from prison) might arise from striking it down?
And yet Roberts hardly touched on the fact that Congress did make pretty much an identical mess of things in the territories and in the long-term care part of the PPACA (which was subsequently repealed), a point which Scalia’s dissent makes.
You suggest that what Roberts did was uphold the statute because of someone’s prediction of bad consequences. But that’s a mis-reading. He pointed to the studies about death spiral to explain the different program elements that Congress put in place in order to help understand how they work together to avoid that scenario. He is not citing those studies independent from any statutory text. And it is utterly commonplace to examine the intent of a statute by looking closely at the harm it sought to avoid.
Since he also makes numerous other pure-text arguments, it is a rather modest departure from a strict four corners approach.*
- Worth nothing, of course, that such an approach is pure flimflam applesauce anyway.
Even self-labeled textualists implicitly use all kinds of outside sources of meaning in their jiggery-pokery because it cannot be humanly avoided.
maybe he wanted to write the opinion
You could also perform some service by explaining something else. I’ve seen a number of references to Scalia’s “textualism” as opposed to “interpretation”. TG, IANAL, but seems to me that is more or less that the actual wording of a law cannot cancel out the clear intent of the law. And how much is that “textualism” associated with the asinine opinion that no rights exist which are not directly referenced by the Constitution?
The president doesn’t get to order the IRS to do what he wants. Nixon tried and failed
He wasn’t the only one to do it but he was the most obnoxious about it.
I remember at the time of his nomination, the left was up in fucking arms. Maybe they feel silly now.
Roberts is still pretty bad in my view (see Gay Marriage ruling, for example). He’s not as bad as the other three, (Alito, Scalia, and Thomas), but that’s not high praise.
He’s plainly changed on the bench, much like Warren did although not nearly as much, at least yet. There’s no reason to feel silly about fears that were quite realistic at the time.
If you just want a quick snicker, go right ahead all you want, though.
Well, now you’re going to be sorry you asked. Here come the paragraphs…
Textualism is a method of interpretation. It holds that one ought to assign the meaning to a text that it would have been publicly understood to have at the time it was written (i.e., that a dictionary from the time would state). This is to be distinguished from methods of interpretation that might look to non-text evidence of the intent, goals, or purpose of the drafters.
Scalia is not consistently a textualist. He will sometimes be heard to argue that, for example, if no one at the time could have anticipated some result, then that result cannot be required by the text. That’s obviously an intent-based argument, whether he admits it or not.
Nor does textualism necessarily answer any given question of interpretation, even by its own framework. It does not, for example, solve the problem of meaning when a text would be assigned different meanings in good faith by large parts of the public at the time it was written. This latter indeterminate nature of the philosophy means Scalia has to essentially decry the good faith of people who would read the text differently, essentially accusing them of lying about how they read the text.
No one completely disavows constitutional rights not directly named. For example, Scalia certainly believes that the right to the free exercise of religion entails the right to select the teachers at your private religious school on the basis of their religion. That’s a penumbra. What Scalia and others disavow is that a right in the Constitution can have a consequence that its drafters did not anticipate. But that doesn’t come from textualism at all. A piece of text could say something like this (and the Constitution does essentially say this): no law that treats to people differently is valid unless there is a objectively rational reason for treating them differently. That’s very clear. And the fact that the writer of that text might not anticipate all the consequences of a such a rule does not make it any less clear. So cabining that text to anticipated consequences has nothing to do with textualism.
Instead, it emerges from a desire to set a limiting principle on the power of the Court. That may or may not be a good thing. Scalia and others like it, in part, because the past is more conservative than the present. So locking in past expectations systematically favors results he likes. But there is a genuine debate apart from that reality about whether and how a principle set in place today should be allowed to have results beyond or even contrary to the expectations of the democratic majority that enacted that principle. It just has nothing to do with textualism.