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Susan Estrich
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What Courts Do Best


Sometimes what courts do best is the same as what second-grade teachers do best: clean up sloppy sentences. You know what the student meant to say, but what they actually did say doesn't quite make sense.

Six words: If you can't afford health coverage, subsidies are available through "an exchange established by the state."

But what if the state didn't set up an exchange and instead is relying on the exchange set up by the federal government?

Do you then NOT get a subsidy?

The majority opinion referenced "more than a few examples of inartful drafting," but concluded that "the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase."

In other words, Congress meant for the act to work, not to fail, and so the court, recognizing the frenzied state of drafting and redrafting mid-election, decided to read the bill so that it would work. It decided to read the bill so that poor people would get subsidies regardless of whether their state created an exchange. Congress was trying to help people who needed help, and the Supreme Court, as it has done in the past (maternity leave being an example of a gendered law that was upheld), has cleaned up the inartful language that would bar precisely what Congress was trying to provide.

So what's everyone yelling about? Simple. This was never about principle. This wasn't a dispute about the separation of powers or abuse of executive power or anything like that. This has been a fight about politics, fair and square.

Plenty of elections turning on it. But all politics.

So the people from the states that "weren't entitled" to subsidies actually wanted the subsidies — they were just against the law. You won't see many people sending those subsidy checks back in the mail, or insisting that their 20-something kids not be covered, or — imagine — excluding people from buying insurance precisely because they are sick. What could be more ridiculous?

I hope someone has tallied up the amount of time the Republicans have wasted filibustering and coming up with votes sure to fail in an effort to thwart their political defeats. And then what do they do? They go running to the courts to demand that the judiciary, known as unduly active when they're against you, become the staunch defenders of constitutional government when you're out to crush Congress.

In his dissent, Justice Antonin Scalia said: "We should start calling this law SCOTUScare." By Scalia's lights, the court has saved the law twice now from its sloppy drafting — or unconstitutional abuse of power, which is how he would have it.

But there is another way to see it, which is simply this: The court did its job. It cleaned up some drafting and interpreted the law as a good-faith effort to accomplish what its drafters set out to do, which is expand affordable access to quality health care. No small job and not done perfectly, certainly not this time. But if we would spend half as much time figuring out how to fix the law, which is here to stay, as we have playing games that would neither destroy nor fix it, Americans might be better off in more ways than one.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



7 Comments | Post Comment

No, the 9 lawyers in black robes (aka US Supreme Court) are simply political hacks and the US Constitution means nothing as word mean nothing.

The Alice in Wonderland view that words can mean whatever one wants them to mean makes for enjoyable reading but bad law.

Basically words mean what ever the political hack lawyers on the Supreme Court wants them to mean. Thus, we are no longer a constitutional republic - we are some mix between an Aristocracy and a fascist totalitarian Oligarchy.

The only silver lining is that lying big government Liberals will lose their freedom and be abused just as much as Liberty loving individuals.

Another silver lining is Obamacare is dead - we now have SCOTUS-Care or Roberts-Care because the Supreme Court has drafted their own healthcare law and found it constitutional valid. LOL, what a group of azzes.

Hey America, if you want to be ruled by 9 jackazz lawyers in black robes be my guest. No skin off my back.

Comment: #1
Posted by: SusansMirror
Thu Jun 25, 2015 6:41 PM
You are quite correct. The court did it job and it is time to get to work on the many parts of the law that are not working well. I might add that the court saved the GOP from themselves on this one. The folks who would have lost their coverage had this been an activist court would mainly have been in red states. Blue states have state health care exchange. I suspect that the court is about to do the GOP the same favor with the gay marriage issue. This is clearly an issue that the GOP's base demands that its candidates stand firmly on the wrong side of history. Taking the issue off of the table with 50 state legalization would be quite a gift to the GOP.
Comment: #2
Posted by: Mark
Thu Jun 25, 2015 9:36 PM
It's not the court's job to act as a second grade teacher or to treat the Congress as a bunch of second-graders. It's not their job to "clean-up" the law.

If the intent was to great healthy markets for healthcare, then the required response would be to strike down PPACA, as it has not and cannot create an environment with more choice and more competition.

If the intent was to improve the healthcare of the citizens of the country, then the required response would be to stricke down PPACA as it is just another managed care program and they have been shown to lead to poorer outcomes and care rationing.

If the purpose of the Supreme Court is to interpret it so that it could best achieve it's intent and then we must go back to the core intent as communicated by the president and other democrats:

1. If you like your current insurance, you can keep it.
2. If you like your current doctors, you can keep them.
3. The average family of 4 will save $2500/year on insurance.

Since it has failed on all 3 counts, the only rational response would be to strike down PPACA.

Lastly, while Democrats whine that creating an incentive for state participation in creating exchanges wasn't intended, it was clearly shown that the incentive did exist for Medicaid expansion. We also have clear evidence in from many more people that Gruber that making subsidies dependent on the state creating the exchange was a conscious design choice. States understood this, for if their citizens could get the subsidy without the state going through the effort of designing and implementing an exchange, why would they?

Let's talk about another "intent" of PPACA. Budget neutrality. PPACA is that it has failed to achieve any goal any supporter set out for it. Even when those goals were revised downward, they have underachieved. Achieving these goals was part of the "budget neutral" justification for the legislation. Missing these goals so badly means it ain't going to be budget neutral. Looking back, it was clear many of the assumptions were wrong and many of the mechanism were not suited to achieving a good result. On this basis alone, when judging intent, the SC should strike it down with their modified justification of their role.
Comment: #3
Posted by: pb1222
Fri Jun 26, 2015 5:32 AM
Obama, the lies, deceits, and utter dishonesty that characterizes him and his presidency from top to bottom, along with a craven coward by the name of Roberts, upon whom this criminal Administration must have compelling dirt with which to use as blackmail and who joined with the self anointed "wise" [LOL !} Latino woman, the perjury committing bull dyke and the wizened crone; political hacks every one, to produce probably he most disgraceful decision of the Court, have turned us from a nation of laws into a nation of the political whims of men.

This will end badly.

No plainly written statute is safe. No words may now be take to mean what they mean and were intended to mean. All words are now subject to the jiggery pokery of politics and the saving of a Token.

The rule of law is now meaningless, plain words are now meaningless, statutory language is now meaningless, objectivity is dead.

Rene' Descartes' cogito, ergo sum; I think therefore I am has for the self disgraced six of SCOTUS become we the America hating liberals think that its our job to assist the incumbent token president in that destruction therefore it will be. All hail Barack. OH and bend over Roberts and take it in the azz again. Barry's here.

We are now subject to soft tyranny and supported by a disgraced SCOTUS majority that has lost all credibility.
By we, I mean the productive not the 47%, the parasites, the illegals,the welfare kings and queens, the indolent minorities, the drags on society who simply vote Democrat for a living.

Once the rule of law goes, so too does the civil society. Get ready and keep your powder dry.
Comment: #4
Posted by: joseph wright
Fri Jun 26, 2015 6:31 AM
Who needs ISIS or worries about ISIS when we have the SCOTUS?

These political hacks have become a Terrorist Group out to destroy Liberty and the rule of law in the US. And they have effectively done just that.

Without the rule of law to control the government azzes in power we the people have no liberty - only the illusion of liberty.

The more things change the more they stay the same. Chief Justice Roger B. Taney had nothing over Roberts et al.
Comment: #5
Posted by: SusansMirror
Fri Jun 26, 2015 11:54 AM
Comment: #6
Posted by: SusansMirror
Fri Jun 26, 2015 12:16 PM
Dear Ms. Estrich,

Why are we paying 9 U.S. Supreme Court Justices when all we need to do is pay (1) - Justice Anthony M. Kennedy to decide all the cases coming before the SCOTUS???? Duh????

Nuff Said...Dennis
Comment: #7
Posted by: Dennis
Sat Jun 27, 2015 1:06 AM
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