Antonin Scalia, Obamacare and the idea of statutory language

Anton Scalia now mocks conservatives, too.

Four words of the Affordable Care Act—"established by the State"—spurred Justice Antonin Scalia to heights of sarcasm remarkable even for the Supreme Court's most-fluid writer and the justice who has long been the most willing to insult his colleagues in writing.

The twist was that the target of Scalia's 21-page dissent—in a 6-3 decision upholding Obamacare's subsidies for individual health insurance purchased by residents of states that did not set up online "exchanges" to sell policies—was Chief Justice John Roberts, not the liberal-to-moderate justices the 79-year old Scalia usually skewers.

Supreme Court Justice Antonin Scalia
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Supreme Court Justice Antonin Scalia

Substantively, the argument was about which of them hewed to the mainstream conservative approach to statutory interpretation—defer to the legislature, find its intent and make happen what the people's representatives set out to do. Stylistically, it became a showcase for Scalia's acid pen, offset by the 60-year-old Roberts' efforts to parry the thrusts.

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"It is bad enough for a court to cross out 'by the State' once," Scalia wrote in his dissent, after a list of different provisions he said made the same distinction between the federal exchange, Healthcare.gov and those administered by states. "But seven times? … It is common sense that any speaker who says 'Exchange' some of the time, but 'Exchange established by the State' the rest of the time, probably means something by the contrast."

Scalia's litany of mockery accused the majority of confusing the secretary of health and human services, whom the act charges with overseeing the federal exchange in states that don't create their own Web marketplaces, with the 51st state.

"The Secretary of Health and Human Services is not a state,'' Scalia wrote. "So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under [the law]. Words no longer have meaning if an Exchange that is not established by a State is 'established by the State.'"

Substantively, the issue was whether a state's refusal to set up an exchange, knowing the federal government would do it for them, was simply a different way of creating an exchange that excused Republican governors opposed to Obamacare from having to implement it.

"The cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites." -Anton Scalia, Supreme Court Justice

Roberts, a conservative appointed by former President George W. Bush, argued that it was. His 22-page majority opinion said the court's job is to apply congressional intent when it was clear, and to figure out from the entire law what a specific disputed piece of language means if the provision's intent is vague.

The six justices concluded that the language was ambiguous, and that the "established by the state" clause was one of a long list of drafting mistakes stemming from the fierce battle in Congress before it was passed. If the language is ambiguous, mainstream statutory construction requires courts to figure out which interpretation better fits the overall goal of what Congress set out to do.

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"If the statutory language is plain, we must enforce it according to its terms," Roberts wrote. "But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme. Our duty, after all, is 'to construe statutes, not isolated provisions.'"

From there, Roberts cited the experience of states like Washington that set up health insurance reforms without subsidies, only to see their health insurance markets unravel as rates skyrocketed and people refused to buy coverage. Since Obamacare would also collapse without the subsidies, forcing premiums to skyrocket in the 34 states that left the job of selling insurance to their residents to the federal government, Roberts said Congress couldn't have meant to deny subsidies to residents of those states.

"The tax credits are among the Act's key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people," Roberts wrote. "Whether those credits are available on Federal Exchanges is thus a question of deep 'economic and political significance' that is central to this statutory scheme."

Most of Roberts' opinion steers clear of the jabbing tone of Scalia's dissent—with some exceptions.

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,'' Roberts wrote. "We must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan."

For his part, Scalia saved his toughest insult for last: He accused the majority, including Roberts and Justice Anthony Kennedy, like Scalia appointed by President Ronald Reagan, of making the partisan goal of saving the ACA its overriding principle.

"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court's two decisions on the Act will surely be remembered," he said. "And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. "

By Tim Mullaney, Special to CNBC.com