So on one hand its a literalistic reading of one phrase On the other its

So on one hand its a literalistic reading of one

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So, on one hand, it’s a literalistic reading of one phrase. On the other, it’s resolving internal contradictions and enabling the law to function. It is not a judicial innovation to choose the latter. Indeed, it is common sense—and conservative legal theory. You’ll notice that the last several paragraphs have said nothing about whether it’s a good idea for the government to manipulate the health care system. That’s a political question, not a judicial one. (Whether it is constitutional was resolved in the earlier Obamacare case, NFIB v. Sebelius.) The judicial question is how statutes are to be interpreted. In today’s polarized political environment, liberals and conservatives alike miss this point completely . The Court is seen as voting on Obamacare, voting on gay marriage, or—in today’s other major case—voting on civil rights laws. Indeed, particularly when it comes to marriage, courts get criticized for “overruling the will of the people. ” That is completely wrongheaded, and indeed, anti-democratic. Of course courts overrule the will of the people when that will is unconstitutional. That’s the whole point of judicial review. And of course courts are not casting votes on the merits of the laws they review. (That being said, Chief Justice Roberts did spend the first part of his opinion cataloguing the state precedents to the Affordable Care Act, as if to remind political conservatives that it was originally a Republican idea. Not casting a vote is not the same as being politically oblivious.) Notably, Justice Scalia’s dissent —while typically angry, invective, and coarse, at one point calling the ACA “SCOTUScare”—did not make some political argument for why Obamacare is a bad idea . He found fault with the majority’s theory of judicial interpretation, arguing that courts must not “repair” bad laws, but simply review them as written. That seems odd and myopic in this case—but it’s still judicial reasoning. Certainly, one might question Justice Scalia’s motives; he is literalistic when it suits him, expansive when it doesn’t. Just look at Hobby Lobby for a case that massively extended the plain meaning of the statute, defining corporations as people. However, even if justices are politically motivated, they are at the very least bound to do the work of judicial interpretation—as Justice Scalia did here. Not so on Fox News—or, to a lesser extent, on MSNBC. In conservative and liberal pundit-land, these decisions are mere referenda of nine people in robes. In the legal academy, this cynical view is known as “positivism”—the idea that, underneath all the rationalization, courts are just judges exercising power. It is a marginal view, as it deserves to be. No. Just as, a few months ago, the Supreme Court expanded the social safety net for pregnant women for conservative judicial reasons, it has now left the ACA standing for the same reasons. This decision is only “liberal” in the
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