Yet Again, A Scalia Dissent Is Used Against Him

Justice Antonin Scalia strongly objected to Thursday’s Supreme Court decision upholding the Affordable Care Act, so it was amusing to see Chief Justice John Roberts use Scalia’s own dissent in the last major Obamacare case against him.

It was buried in a footnote and amounted to a small dart lobbed Scalia’s way, especially when compared to Scalia’s blistering dissent that ripped Roberts’ legal reasoning.

To defend making the subsidies available to consumers everywhere, Roberts cited a line the dissent to the 2012 decision in favor of Obamacare, in which Scalia said, “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

Roberts used the line to argue that it “is implausible that Congress meant the Act to operate” in a manner to limit the subsidies only to those states with state-operated exchanges, as the challengers in King v. Burwell argued.

This is not the first time Scalia has seen one of his dissents used against him. His dissent to the 2013 Windsor decision that struck down the Defense of Marriage Act was widely cited by lower courts to invalidate state bans on same-sex marriage.

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