June 29, 2015--Jiggery-Pokery

In his, even for him intemperate rant against the Supreme Court's historic 6-3 decision to uphold the constitutionality of the Affordable Care Act (ACA), associate justice Anton Scalia went further than usual in a descent that went beyond the judicial to the very personal.

More than saying that he fervently disagrees with his colleagues' legal logic, he accused them of participating in a deceitful and dishonest act, even applying the archaic Scottish slur jiggery-pokery to impeach their honor and integrity.

In the old days, which he so reveres, he might have been called out to a duel on the field of honor by one of the other justices. But alas, we will have to endure more of him and more of this because the court, under chief justice Roberts, is going rogue on him.

As the intellectual leader of the court's conservatives, the alleged strict constructionists or texturalists,  for decades dominating the other three to four justices who have placidly gone along with his views of the Constitution (with Kennedy occasionally being a swing vote, agreeing with the four automatic liberals), Scalia now finds himself at times in the minority, especially when the court hands down its most significant decisions, like last week's rulings on Obamacare, same-sex marriage, and the Fair Housing Act. (Do not overlook the importance of the latter.)

Scalia might have been more enraged than ever by Roberts' majority opinion in Burwell (the ACA appeal) where he subtly and without attribution quoted Scalia to himself to support the core of the argument he articulated for the five concurring justices.

It is all about context, as Scalia claimed in cases last year when he employed the same contextual argument--it is all about what the Congress truly intended. In the ACA case, Roberts wrote last week, if one looks at the 900-plus page context of the ACA--as Scalia would have us do in selective instances such as this one for laws he viscerally despises--it is clear that Congress intended the uncovered to be able to obtain affordable health care insurance.

Being quoted this way to justify something he violently opposes clearly got under Scalia's skin and motivated him to deliver his dissent from the bench, a highly unusual occurrence that underscored his fury.

But, again, Scalia's intemperance is less about the Obamacare vote than his sense that the court and American society on key social issues are moving on and he is more and more being left in the retrograde past--multiple meanings intended.

He will learn forcefully now that this is the Roberts' Court, not the Scalia.