Updated - "To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states."
I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history. (Greenhouse, NYT) (See also Moncrieff, The New Republic; and Lithwick, Slate)
Justice Antonin Scalia may be playing devil's advocate or he may just be playing, not taking too seriously the lives and health of Americans.
In Oral arguments in King v. Burwell, Scalia is enjoying himself contemplating millions of Americans losing their health insurance because of a four-word phrase that comports less-than-perfectly with a nearly 1,000-page law, the Affordable Care Act, but fits well to sensible, fair-minded jurists. (Barnes, Washington Post)
It's a game for Scalia and his brand of jurisprudence, an incoherent game with no rules but a game nevertheless.
Scalia's intellectual legal nemesis, Richard Posner, in his book Reflections on Judging (Harvard University Press. 2013) notes Scalia's appetite for "'gotcha' jurisprudence" (p.182).
Scalia is a goof. But he may have to go along with his betters this time.
After the Solicitor General briefly discussed the standing issue, he outlined the government’s two broad arguments on the merits. The first is that the government’s interpretation of the statute, which makes subsidies available on exchanges created by both the states and HHS, is the best way to give meaning to all the words of the statute. The second point is that the government’s reading “is compelled by” the structure and design of the statute–specifically that it was designed to ensure state flexibility in setting up exchanges, to avert death spirals, and to provide affordable care for all. He argued that in light of these goals, Congress simply could not have intended for the statute to function as intended.
That provoked an immediate and sharp response from Justice Scalia, who said that “of course” Congress could have enacted a statute that functions the way petitioners describe. Justice Scalia then engaged the Solicitor General in a back and forth about whether statutes can ever be written in less-than-optimal ways, and about whether they can ever be nonsensical. The argument implicit in the questioning was that even if Congress wanted to enact a law that works, it doesn’t mean that it actually did so. In that sense, Justice Scalia seemed to be drawing an even harder line than the petitioners.
... Justice Scalia’s questions are very interesting in light of recent statements he’s made reiterating that statutes should be read as a whole. Of course, the government urges such a reading in this case, arguing that a holistic reading supports its view of the subsidy provisions, but the petitioners make whole-statute arguments as well even as they emphasize the particular words in Section 36B that support their argument most clearly.