Daily Beast Pundit: Scalia ‘Farted’ a ‘Nakedly Political,’ ‘Dishonest’ Dissent in Obamacare Case

Conservatives are accustomed to admiring the work and deploring the politics of artists like Bruce Springsteen and Stephen King. The Daily Beast’s Michael Tomasky wrote Thursday that some liberals have had roughly similar feelings about Antonin Scalia, but that’s over now because of Scalia’s dissent in King v. Burwell, which was devoid of the justice’s usual “writerly flair and intellectual acumen.”

“It long ago became a kind of fetish, the anticipation of reading Scalia’s opinions,” remarked Tomasky. “There was always an excess of intellectual and moral certitude, to be sure, but there was also wit and a kind of joyfulness of battle whether he was on the winning or losing side…But that was then. This decision is something else again. Here, there is no wit. There is just bile. As you read along you can veritably see his carotid artery pulsing, growing; smell the sweat flopping out of the pores...The law lives, and he is livid.”

Stylistic issues aside, Tomasky noted, “Hey, I’m not complaining. [Scalia] could have written this in a way that, at least from a legal perspective, made some Obamacare supporters think twice. Instead, he just farted.”

From Tomasky’s column (bolding added):

It’s just a nakedly political and partisan document…[T]his opinion, this single opinion, guarantees that far fewer liberals and disinterested court watchers who have up to now respected Scalia’s writerly flair and intellectual acumen will bother to show up.

…The assessment of Scalia, even among liberals who disagree with nearly every opinion he writes, has been that he is the master of the written opinion. It long ago became a kind of fetish, the anticipation of reading Scalia’s opinions, whether they were majority ones, dissents, or concurrences. There was always an excess of intellectual and moral certitude, to be sure, but there was also wit and a kind of joyfulness of battle whether he was on the winning or losing side.

But that was then. This decision is something else again. Here, there is no wit. There is just bile. As you read along you can veritably see his carotid artery pulsing, growing; smell the sweat flopping out of the pores of his increasingly orotund person. And more to the point you can tell quite plainly: He saw killing this law as his life’s mission, the culmination of his years on this bench and the respect and deference he feels he has earned, the great moment when his arguments in chamber would pulverize the others’, crush them to dust. This was to be his indelible stamp. But he failed. The law lives, and he is livid.

...Scalia’s [opinion] is just a big long dyspeptic finger-wag that, by the way, makes no mention of the consequences of taking health coverage away from 6.4 million people.

His failure to discuss those real-world consequences becomes, at length, conspicuous, and revealing. It’s an old debate, whether justices should care about real-world consequences or only legal principle. But here, Scalia sticks so narrowly to legal interpretation that it’s ultimately he who comes across as the political one: If he can’t even grant those 6.4 million people one paragraph of his time, it’s pretty obvious what his agenda is.

But finally, and most of all, the opinion is dishonest. The crucial sentence here is this one, on page 18 of his dissent: “Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges.”

Wrong. It’s in fact so wrong that is it either an outright lie or, far worse in the case of this intellectual giant, ignorance. Numerous, numerous news reports have given us quotes from both Democrats and Republicans who worked on the bill saying no, we always meant state or federal exchanges, always…

Hey, I’m not complaining. He could have written this in a way that, at least from a legal perspective, made some Obamacare supporters think twice. Instead, he just farted.

Judiciary Health Care Conservatives & Republicans Liberals & Democrats The Daily Beast ObamaCare U.S. Supreme Court Michael Tomasky Antonin Scalia


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