I spent most of the day opining in front of the Supreme Court and in studies on the 6-3 ruling in favor of the Obama Administration in King v. Burwell. I will not subject you to more of that analysis. I have previously indicated that I found the opposing view of the Halbig decision against the Administration to be compelling, though I have always viewed this to be a difficult question upon which people of good-faith could disagree. Yet, in both my prior congressional testimony and my columns, I have never accused the Administration of “jiggery-pokery” — largely because I was not sure what jiggery-pokery is. However, Associate Justice Antonin Scalia has written a stinging dissent to King that contains the memorable accusation that the majority was engaging in “interpretive jiggery-pokery.”
Quite fittingly given his prior decision harkening back to the original intent of the Framers, the term originates in the eighteenth century and means a dishonest manipulation or twisting like what we would call a flim-flam today. It can be traced to the Scottish word jouk, meaning to skillfully twist one’s body to avoid a blow like a boxer or fencer. Joukery became a term for underhanded dealing or trickery which led to the association with the word Pawky (from the word pawk or trick) Thus, by the seventeenth century, the first combination of joukery-pawkery were heard and it came into vogue in the 18th Century . . . and now again in the 21st Century.
Words Mean Nothing:
This case did not involve constitutional interpretation.
Invisible Mikey,
Please review the constitution and the use of State (yes it is capitalized when referring to the different States), or see my comment above (copy/paste) form said document.
I realize it is capitalized in the Constitution, and I should have specified current English usage, which I (perhaps erroneously if Scalia’s right) assumed they employ when writing current laws.
Using this new definition of “State” makes things a bit confusing…
The 10th Ammendment now reads…”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States (including the United States), are reserved to the States (including the United States) respectively, or to the people”
With the ever expanding goverment, it is not like any of our elected leaders paid any attention to this limiting ammendment anyway.
SCOTUS, lol.
Call it what you will, our American system has been diminished
Amen Mr. Fleischer.
The laws do not mean what the written words say, evidently, but rather what some judge or others think that they meant to say. Umbras, penumbras, readings of entrails.
With this new ruling there is absolutely no certainty about any laws since they are made out of smoke and mirrors. In fact, why should ANY of us peons out here follow the laws since we can interpret them to what we think that the law really means. Interpretations which can change from day to day.
Expect a big onslaught of cases disputing the letter of the law versus the interpretation and hidden meaning of the law.
With these recent decisions and in light of the Kelo disaster, I don’t think we have a government of laws anymore.
We will not be able to vote our way out of this mess.
Reblogged this on The Grey Enigma.
Of COURSE the SC upheld the subsidies. 6 million people immediately without health insurance? Even John Roberts saw the wrongness in that and acted on principle. Good for him. 6 to 3 says something. It’s heartening to know that the good majority of the SCOTUS isn’t jiggery-pokery.
While I am not happy with this decision, I am much more concerned about what it says about the Court and what future decisions might look like. It is not the job of the Court to decide what they would like the result to be and then find some torturous way to arrive at that result. Their job is to rule on what was written into the law. If the language of the law is not what Congress intended, then it is up to Congress to go back and fix it. That is not, nor should it ever be, the job of the Supreme Court.
In British English it’s not an uncommon phrase. I can see Scalia’s point without necessarily disagreeing with it. I suppose I’m used to assuming that it’s the job of high level jurists to employ their skills and experience to discriminate between jiggery and pokery, to decide which sequence of arguments best serves justice. When severe and irreconcilable differences occur at this level you would expect to see the term jiggery pokery emerge in dissent. Too much jig, not enough poke as it were. I’ve no doubt Associate Justice Scalia goes into much more depth than that phrase in his dissent.
“Thus, by the seventeenth century, the first combination of joukery-pawkery were heard and it came into vogue in the 18th Century . . . and now again in the 21st Century.”
This proves what I have always thought – – Scalia is actually 300 years old and not only thinks like someone from the 18th Century . . . he IS just that anachronistic. So I hardly think that this expression will be “in vogue.” Just perhaps bandied about by a few 300 year olds who walk among us.
pdxbanana – you could look at it the other way. The majority is acting like a bunch of 300 year olds.
This is what I wrote on March 4, 2015 at 3:23 p.m. in response to Prof. Turley’s post on this case:
“Those who suggest that the issue in this case is merely whether the law should be enforced as written are being overly simplistic. There are many rules developed over centuries concerned with the proper construction and interpretation of statutory language. This case involves the application of those rules to an extremely complex piece of legislation.
It is also a mistake to insist that the Court should not concern itself with the practical consequences of its decision. That concern will have an impact for at least two reasons. The first is obvious, the effects of an adverse decision on millions of people who have procured health insurance for the first time, the insurance companies who have underwritten that coverage and the non-profit institutions who provide the bulk of the health care in this country.
The second reason is the Court’s own reputation. More than either of the other two branches, the Court’s authority is largely derived from the respect shown by the public for its decisions, whether popular or not, based upon a fundamental commitment to the rule of law. We should not delude ourselves into thinking that the Court will invite chaos if it can be avoided.
For what it’s worth (I know, I know, it ain’t worth much), I predict that the Court will uphold the 4th Circuit in a narrowly tailored opinion which finds some ambiguity in the language and resolves it based upon congressional intent and deference to administration interpretation.
And since I’ve already stuck my neck out, what the heck. Here’s the vote:
To affirm: Roberts, Ginsburg, Kagan, Sotomayor, Breyer and Kennedy.
To reverse: Scalia, Thomas and Alito.”
This is what I wrote on March 16, 2015 at 2:18 a.m. in response to Cara Gallagher’s post on this case:
“Very good synopsis of the arguments. My instinct tells me that context will prevail over literalism in this case for several reasons. First, the intent of the legislation was clearly to provide subsidies in the form of tax credits to all those who purchase insurance through exchanges and who otherwise qualify. Second, the disputed text was likely an example of sloppy draftsmanship rather than a deliberate attempt to sabotage the legislation. Third, the construction advanced by the petitioners, if accepted by the Court, would produce a result that calls into question the constitutionality of the tax credit provision under the Fourteenth Amendment.
My sense remains that the petitioners will lose on a 6-3 vote, but I’m not putting money on it.”
I guess I should have put money on it. But contrary to Justice Scalito’s linguistic anachronisms, the opinion is neither radical nor surprising. It was direct, succinct and fully within the mainstream of statutory interpretation. It does not presage the end of the Republic, the death of freedom or the abolition of capitalism.
I suppose it would be immodest of me to suggest extraordinary prescience on my part at this point, but I would not find it inappropriate for others to do so. I recognize that it is far more likely, however, that this thread will generate several hundred comments of increasingly hyperbolic denunciations of the decision, undoubtedly including one or two caustic Irish poems, references to the Preamble as substantive law and vitriolic reminders of the remedies afforded by the Second Amendment.
Well, like I said on the other thread, the GOP dodged a bullet today. Because it was mostly Red states that would have been clobbered. The idiots in America will get another chance in 2016 to make things a little better, for a little while, but I think we are already on a downward spiral that can’t be stopped until something really b ad happens. Because by and large, like drunks and drug addicts, we haven’t been hurt enough yet. And I haven’t seen anybody but Trump who has a good realistic vision of what is wrong, and both the MSM and FOX and the GOP establishment is against him.
Squeeky Fromm
Girl Reporter
Seeing the way insurance company stocks have risen today, tells us all we need to know as to who the big winners are in this decision. Beyond disappointing.
How many times have I explained to you leftists that the SCOTUS works for big business and big government? Well, I’m here to remind you again–after a 2 year hiatus. Obamacare benefits big government and it benefits the insurance companies big time. That’s what it’s all about—oh, and ripping off the public, of course. That goes without saying. Get it? (Got it.) Good!
We do not have 3 separate branches of government anymore. We are simply liberals and conservatives.
I find it unfortunate that our Supreme Court is now a political animal. Words mean something, and I believe State or States meant the individual State, not the culumitive group.
In English usage, the word “state” is not capitalized when referring to different states unless they are specifically named. Therefore the primary meaning of the phrase “established by the State” is the United States, the central government. That’s how it’s written in this law.
But I accept Justice Robert’s rationale for the interpretation of legislative intent. Why would Congress write a law it intended to fail based on an incorrect word choice?
Uh, er, uh. . .I think the safe term nowadays, is either “jegro” or “the J word.” Because, we should be aware of micro aggressions and stuff.
Squeeky Fromm
Girl Reporter
From what I understand of the decision, he is absolutely correct in his description. Although I am curious as hell as to where he came up with that word combination.
I like his calling this law is now SCOTUScare. I wading through I see Roberts took a shot @ the way this landmark bill was passed via reconciliation. That’s a fact many have forgotten, some never knew, and most people don’t understand. I think Roberts took the shot @ Pelosi as a way to throw a bone to the dissenters. WTF does that matter now? I knew how it passed and anyone engaged does as well. That’s water under the bridge. You take a loss, brush yourself off, and win elections. But, in the litigation dept., it’s up to JT now. The Cubs appear to be truly ascending, maybe that’s an omen for our diehard Cub fan.
Call it what you will, our American system has been diminished.
Once again, Mr. Roberts has used his intellect and his position to further a political agenda at the expense of the Constitution.