Barrett, Roberts, and Obamacare


Several Democratic senators have brought up Judge Barrett’s criticism of Chief Justice Roberts’s opinion in the 2012 Obamacare case, citing it as evidence of her alleged eagerness to strike down that law. The issue in the current Obamacare case is different from the one that was before the Court back then, as Barrett has repeatedly sought to explain to ineducable senators.

But it’s also worth noting that Barrett’s criticism of Roberts isn’t some off-the-wall right-wing view. What Barrett wrote is that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.” No justice of the Supreme Court, in 2012 or since, has ever maintained that Roberts’s reading of the statute was the most plausible one. That includes Roberts himself.

The Affordable Care Act, as written, included a requirement that individuals purchase health insurance and a penalty for violating the requirement. Every justice on the Supreme Court in 2012 either explicitly argued or implicitly accepted that this reading of the law was the correct one.

Justice Ruth Bader Ginsburg, writing for four justices, accepted that the law included a penalty for violating a requirement and concluded that it was within the constitutional powers of Congress to impose it. Justice Antonin Scalia, writing for four other justices, argued that it was implausible to read the relevant provisions of the statute as anything other than a penalty for violating a command, and that command was unconstitutional.

Chief Justice Roberts took the view that the law could instead be read to levy a tax on going without health insurance, and had to be read that way because it would indeed be unconstitutional for Congress to issue the command. He didn’t say that it was “the most natural interpretation” of the law as written; he said “the statute reads more naturally as a command to buy insurance than as a tax.” The structure of his argument depended on the tax reading not being the most natural one. (If it were, he wouldn’t have had to address whether a command would be constitutional.)

Scalia’s opinion has the better of the argument: Roberts’s “saving construction” of the law is not a plausible reading of it. The fact that zero justices argued that it was the most plausible reading of the law helps to support that conclusion. Judge Barrett is right.

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