Brief Thoughts on King v. Burwell
On this week's Dead Reckoning Radio episode, we discussed the Supreme Court case of King v. Burwell. I'm simultaneously sad and proud to say that everything we said turned out to be exactly correct.
Hadley predicted that the Court would rule 6-3 in favor of the government, and added that whatever happened, Justice Roberts would side with Justice Kennedy. So it was. If you needed any confirmation whether this Dead Reckoning thing is worth listening to, or whether we're just three ignoramuses pooling our ignorance, this should give you an idea.
But, additionally, I predicted that Justice Roberts would vote to uphold the Affordable Care Act and gave a very specific reason. I noted that Justice Roberts's judicial philosophy seems to be to read a statute in the most generous and charitable way possible (which is not in and of itself a bad thing), to the extent that he rewrites laws in his own head. If I do say so myself, that's a fairly uncanny sense of it, given that that is precisely what Roberts proceeded to do. Never mind the text of the law; Roberts divines what Congress surely must have meant. And what they "must have meant" has, I guess, the force of law.
All of which brings me to the non-horn-tooting portion of this post. We are no longer a nation of laws. We are now governed by the mere good intentions of legislators and the private interpretations of judges. Good intentions are not available for public scrutiny; they neither provide nor submit to accountability. They are shape-shifters, providing the precise opposite of what law is supposed to provide: stability, predictability, and accountability. Likewise, private interpretations are not subject to public scrutiny; they cannot be held accountable nor hold anyone else accountable. They too, shape-shift according to the desires of the one who believes them.
King v. Burwell may seem a small matter, and in one sense, it is. Nothing changes. The law that has been in effect for some years now will remain in effect. In another sense, it marks something of a watershed. It marks a victory for postmodernism in contemporary jurisprudence. Words and texts can be manipulated by sheer will and at a whim. Justice Scalia is surely right when he charged six of his colleagues of abandoning the concept of textual meaning. Words are never fixed; they are ever up for negotiation. The words of the United States Constitution, not to mention the words of the statute under review, have lost all "hold" or power. They no longer provide the accountability of law; they are up for grabs.
This is but a prelude for tomorrow or Monday, when the Court will take the next logical step and place ontology itself (bodies, sexual difference, family formation) up for negotiation, ruling that mothers and fathers are arbitrary mix-and-match things rather than inescapable ontological realities.
The war on words is a war on meaning. It is a rebellious war, a "breaking of the chains" and "loosing of the fetters" (Psalm 2) of God's design for creation and for bearers of his image. And the rebellion goes all the way down, even to the core of our biological identities. The war against God and transcendent meaning is always, ironically, a war against ourselves as human beings. How could it be otherwise? Hate the Creator and his constraints, you surely must hate his creaturely icons, the imago Dei. The sole remaining case before the United States Supreme Court this term, which will "decide" (how foolish that sounds when you stand back and look at it) whether there is such a thing as an ontological reality of sexual complementarity will likely, in the long, broad, philosophical and theological view of the thing, result in misanthropy.
This is no small matter.