The pundits on both sides of the debate are up in arms (also
in protective shields) because six justices of the Supreme Court of the United
States (SCOTUS) have affirmed the judgment of the Court of Appeals for the
Fourth Circuit, thus upholding the Affordable Care Act (ACA) which is also
known as ObamaCare, whereas three other justices have dissented.
Even though both the Opinion of the Court and the Dissent
suggest that the justices themselves have done nothing more than argue the
facts and the Law (Constitution and Precedents,) the pundits have split along
political lines. Those that favor the opinion of the Court are generally of the
Democratic or progressive bent, while those that favor the Dissent are
generally of the Republican or conservative bent.
On the surface, the give and take between the justices who
form the Majority opinion and those who form the Dissent, boil down to having a
preference for the spirit of the law – in this case the ACA – as against the
letter of the law. In fact, this is how judges split most of the time at the
Appeals level and the Supreme Court level. But something different has been
added to the arguments that were formulated by the two sides in this case.
The trouble is that such addition is not made explicit in
the argument of the Court or that of the Dissent. The addition is, however,
suggested by the fact that both sides agree on something. Here is what the
Court says: “Given that the text is ambiguous, we must turn to the broader
structure of the Act to determine the meaning of Section 36B.’A provision that
may seem ambiguous in isolation is often clarified by the remainder of the statutory
scheme...'”
And here is what the Dissent says: “I wholeheartedly agree
with the Court that sound interpretation requires attention to the whole law,
not homing in on isolated words or even isolated sections. Context always
matters. Let us not forget, however, why context matters: It is a tool for
understanding the terms of the law, not an excuse for rewriting it.” Note the
objection to using 'context' as excuse … and the inevitable question which
follows from it: Excuse to doing what?
That question forces us to go back to what the political
pundits are saying on both sides of the argument because, after all, a law that
is affirmed or that is rejected affects the public in a way that pleases one
side of the political spectrum while displeasing the other side. Thus, if the
element of excuse is seen by the Dissent in what the Majority has done, it
means that gamesmanship of the political kind has been introduced in what is
supposed to be a purely juridical enterprise. What could be the game that is
played here?
There is no hiding the fact that the Republican Party has
wanted to repeal ObamaCare, and has tried at least four dozen times to do so,
but failed. And there is no hiding the fact that the Democratic Party sees the
Act as being a signature accomplishment of the Democratic philosophy of
governance, and that it wants the Act to remain. This being the case, the
pundits have taken one side or the other, each according to his or her
philosophical bent.
And so, the question is posed: How do pundits – who are
fundamentally journalists – attack and sink an idea they dislike? Well, there
are many ways to doing so, one being the use of the 'gotcha' method. This is
short for “I got you cornered, and you have no way out.” For this to happen,
the journalists wait for someone (usually a politician) to trip, or they
deliberately set him up to trip. When they succeed, they blurt out gotcha –
which is like saying checkmate when playing chess. It happens in journalism
when the politician inadvertently says the wrong thing at the wrong time, or
says it for the wrong reason.
Now, whether or not the Dissent at SCOTUS had meant to play
the game of journalists and pundits by stressing language over context, had its
opinion prevailed, the effect of rejecting the judgment of the Court of Appeals
for the Fourth Circuit, would have unraveled the entire ObamaCare, and would
have given its opponents the chance to cry out gotcha.