Chief Justice Roberts quietly burns Scalia in the Obamacare decision – The Washington Post.
From the WaPo article:
The main question in the case is about the subsidies used to buy health insurance by people who otherwise can’t afford it. Roberts and Scalia disagree on whether Congress meant for the subsidies to be available through the federally run insurance marketplace set up under the law, as the Obama administration argued, or if Congress wanted to give subsidies only to people who bought insurance through an exchange operated by a state government, as the law’s opponents claimed.
Roberts agreed with the administration. He wrote that it was “implausible” for Congress to set up a system in which people who used the federal marketplace wouldn’t be able to get financial help buying insurance. Scalia disagreed. But, back in 2012, he had written that without subsidies, “the exchanges would not operate as Congress intended.”
And then there was this, from yesterday’s decision affirming the validity of the disparate impact theory of fair housing decision. The majority opinion by Justice Kennedy explains that the Court had previously held similar language in Title VII and the Age Discrimination in Employment Act (ADEA) to support that theory. Regarding the ADEA decision, Justice Kennedy wrote:
In a separate opinion, Justice SCALIA found the ADEA’s text ambiguous and thus deferred under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an Equal Employment Opportunity Commission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243–247 (opinion concurring in part and concurring in judgment).
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., No. 13-1371, 2015 WL 2473449, at *8 (U.S. June 25, 2015). In other words, in 1984, Scalia believed that the language of the ADEA was ambiguous on the question of disparate impact and deferred to the regulations, something he refused to do with respect to the Fair Housing Act yesterday.
And this was just gratuitous, as I’m confident there are approximately 10,000 statutory construction treatises Kennedy could have quoted from:
Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§ 804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012).
Id. at *11.
Such weird unpredictability from someone who believes the meaning of the constitution was fixed in 1787.
[Updated to add the second Inclusive Communities quote.]