(Bloomberg Politics) — From the moment Chief Justice Roberts’ majority opinion on the King v. Burwell case was published, the justice’s clout with conservatives went into free fall. As Bloomberg reported, conservatives have declared him a cautionary tale in the dangers of failing to nominate the right judges (Roberts was nominated by President Bush). While he likely won’t respond to his conservative critics, his footnote responses to Justice Antonin Scalia’s scathing dissent offer a glimpse of how he would defend himself.
While it was Roberts who wrote the court’s opinion upholding the ability of the HealthCare.gov exchanges to offer Patient Protection and Affordable Care Act (PPACA) premium subsidy tax credits, Justice Antonin Scalia’s dissent was the more interesting read. In 21 pages, Scalia calls the reasoning of the six justices who ruled in favor the government “pure applesauce,” and asks several rhetorical question to emphasize his disagreement.
Such as: “Who would ever have dreamt that ‘exchanges established by the state’ means ‘exchanges established by the state or the federal government’?”
But some of Scalia’s questions do get responses. In the footnotes of the court’s main opinion, Roberts references “the dissent” several times to counter Scalia’s arguments.
In one section of the majority argument, Roberts writes that PPACA calls for states to create an exchange, and that the secretary of Health and Human Services (HHS) should establish “‘such exchange,’” implying that the state-run exchanges and the federal exchange “should be the same.” In footnote 2 he writes that Scalia disagrees.
Specifically, he sees an “error in this reasoning.” (In the following passage, “it” refers to the court.)