Antonin Scalia and the Context of Context [UPDATED]

By Mark Esposito

627scalia-1250x650I’ve been reading a lot of Supreme Court cases lately. No big appeal coming up or any federal research to do on any of my cases, I’m just completely  fascinated by Justice Antonin Scalia. The firebrand in the frock is just beside himself  in disagreement with the Court’s 5-4 decision legalizing gay marriage as a fundamental right guaranteed by the 14th Amendment. Assuring us that his outspoken fundamentalist Catholicism has nothing to do with it, just his interest in good government: “[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me.” And lest we harbor any misgivings about the true import of allowing mature adults to decide with whom to associate, out textualist minister of selective originalism (kudos Gene) reduces the problem to its essence employing the subtlety of  Ru Paul: “I write separately to call attention to this Court’s threat to American democracy.”  Whew! Glad someone did.

As testy as Nino gets when he sees dire threats to democracy behind every bush (George or otherwise), he was positively apoplectic in the seminal case of the term penning a dissent for the aged. ( That’s the right the “aged”– you know the folks who already have guaranteed health insurance sponsored by the government).  Before launching the screed about the utter lack of judicial reasoning by the majority, Scalia reminds us yet again that the matter is really not all that worthy of his keen intellect:  “You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it.”  But alas, duty called, and our justice from the past felt the need to render this quite obvious dissent from the bench of  the court.

King v. Burwell was the perfect vehicle for Scalia who has become as much concerned with press clippings as precedent.  Slinging red meat was once reserved for  venal politicians looking for votes, Scalia has raised the artform to imbue the hallowed halls of American justice with pithy sound-bites of justice instead of  rock-solid, if boring, legal reasoning.

Take a gander at this judicial “opinion” that could just as surely have come from the otherworldly pen of Lee Atwater (god rest his soulless soul):

“We should start calling this law SCOTUScare … [T]his Court’s two decisions on the Act will surely be remembered through the years … 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.”

Hey, that’s a good one. It’s not Obamacare; it’s SCOTUScare! Get the push-pollers on the phones!

And why this perversion of law, justice and the American way? Damn fraudulent interpreting of words in their context by Justice Roberts:  devious “jiggery-pokery” of the text, the moralist cries.  Not mere democracy under attack,  mind you, but now our very language is under siege by folks demanding life for 25,000 Americans who died every year before Obamacare was enacted (and thus giving them some chance at healthcare for life-threatening illness). Not that namby pamby Euro stuff like free checkups, cheap prenatal care and universal care at government expense funded by progressive taxation. No, just the right to buy healthcare coverage with some small subsidies provided by the richest Americans. That my dear parishioners … er citizens … is that goblin of the left given to rise from the ashes by that bugaboo — statutory interpretation.

The strict constructionist explains we need not look at the context of words or inartful drafting and compare it to other sections of the law to further the will of Congress (and hence the people they are sworn to protect). Words are words and they mean what they mean, Scalia enjoins us:  “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” And looking to the interests of the public as the majority cites, is mere “applesauce” to the man who believes every citizen potentially has the right to carry a rocket launcher to his local airport. Here’s our jurist on (where else?) Fox News Sunday:

That was Thursday. Now it’s Monday and things have surely changed around the Scalia household. Now it’s Michigan v. EPA, and our originalist is now writing for a majority of the Court and lambasting the EPA for promulgating regulations against polluters who daily endanger human lives pumping heavy metals into the atmosphere and all because the agency failed to do a study on the costs to the industries of saving our lives. Ok, the agency favored human lives over industry dollars and didn’t do the accounting according to the court.  Why do they have to, you might ask?

Well, you left-wing nincompoop, it’s all in the Clean Air Act, of course. You must take into account the costs of regulations writes our scribe of the majority. Ok, where might we find that language in the text?  Here’s the pertinent statutory scheme according to Nino:

“A source that emits more than 10 tons of a single pollutant or more than 25 tons of a combination of pollutants per year is called a major source. §7412(a)(1). EPA is required to regulate all major sources under the program. §7412(c)(1)–(2). A source whose emissions do not cross the just-mentioned thresholds is called an area source. §7412(a)(2). The Agency is required to regulate an area source under the program if it “presents a threat of adverse effects to human health or the environment . . . warranting regulation.” §7412(c)(3).

If the source qualifies for regulation as the plants in Michigan did (that is threatening human health), the agency must, under certain circumstances, conduct a study  (including the costs) to analyze the impact of the regulations prior to promulgating them:

EPA’s disregard of cost rested on its interpretation of §7412(n)(1)(A), which, to repeat, directs the Agency to regulate power plants if it “finds such regulation is appropriate and necessary.” The Agency accepts that it could have interpreted this provision to mean that cost is relevant to the decision to add power plants to the program. Tr. of Oral Arg. 44. But it chose to read the statute to mean that cost makes no difference to the initial decision to regulate. See 76 Fed. Reg. 24988 (2011) (“We further interpret the term ‘appropriate’ to not allow for the consideration of costs”); 77 Fed. Reg. 9327 (“Cost does not have to be read into the definition of ‘appropriate’”).

“Appropriate and necessary”  are the key words for if the EPA reasonably  concluded that costs were irrelevant because the regulations were both “appropriate and necessary” to protect human health, it could dispense with the study in the public interest. And according to longstanding precedent its interpretation of ambiguous language is entitled to a judicial pass.

Not so fast, said Scalia. “Appropriate and necessary” are not such simple stuff. It’s all about … gasp … the context of the terms:

“One does not need to open up a dictionary in order to realize the capaciousness of this phrase. In particular, “appropriate” is “the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors.” 748 F. 3d, at 1266 (opinion of Kavanaugh, J.). Although this term leaves agencies with flexibility, an agency may not “entirely fai[l] to consider an important aspect of the problem” when deciding whether regulation is appropriate. State Farm, supra, at 43. Read naturally in the present context, the phrase “appropriate and necessary” requires at least some attention to cost. One would not say that it is even rational, never mind “appropriate,” to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. In addition, “cost” includes more than the expense of complying with regulations; any disadvantage could be termed a cost. “

So statutory  phrases require context and the term “cost” surely means something not found in Websters. But I thought democracy might fail unless we apply only the plain meaning of words devoid of context and thus avoid the evil of judicial lawmaking? Nope, not here, says Nino. Only over there.

Could it depend on which legal ox is being gored? Oh, no that’s too Machiavellian. It’s really very simple.

As simple as say Humpty Dumpty’s explanation to Alice in  in the Lewis Carroll classic hdThrough the Looking Glass:

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”

Master, indeed. Principles are tricky creatures. Seems they are always showing up, uninvited, just when you think you’ve banished them to the last case. That’s a lesson our modern-day Justice Humpty Dumpty might want to consider before dancing on the next wall.

~Mark Esposito


UPDATE:  A friend of mine reminded me that Scalia has written a book called, A Matter of Interpretation. In that work, he describes the court’s duty in scrutinizing ambiguous statutes is to “to give effect to ‘the intent of the legislature’.” Judges, he adds, are supposed to resolve inconsistencies “in such a fashion as to make the statute, not only internally consistent, but also compatible with previously enacted laws.” And the kicker:

Context is everything…the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation – though not an interpretation that the language will not bear. [p. 37]

About mespo727272

I 'm a plaintiff's personal injury attorney with 30 years of trial experience practicing with my law school classmate in Richmond, Virginia. You can read all about me here:
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26 Responses to Antonin Scalia and the Context of Context [UPDATED]

  1. rafflaw says:

    Scalia is a bought and sold agent of the corporate bosses and just hates it when his bias is in full display!

  2. mespo727272 says:

    They got short-changed.

  3. The Dark Lord takes one on the chin. Well played, Mark.

  4. Elaine M. says:


    I think it was a 5-4 decision.


  5. blouise17 says:

    Putting all of Scalia’s gibbering aside for a moment, am I correct in stating that the decision allows the EPA to go back and develop a more extensive analysis of the costs and benefits of regulating mercury emissions? And that all this ridiculous legalese masturbation has accomplished is to give the coal/electricity plant/states a bit more time?

  6. Elaine,

    Some outlets were initially reporting it as 6-3 with Roberts joining in.

  7. Elaine M. says:


    I thought that was the ACA decision.

  8. Mike Spindell says:


    I share your fascination with this man, but from a different perspective than that of one with your legal scholarship. For you watching the verbal twisting and turning of Nino’s supposed intellect must astound at the reality that there is no intellectual/legal there, there. As you show, he skews his interpretations towards his personal prejudices and then denounces those who would point this out, for not bowing to his “brilliance”. From my psychologically oriented perspective I see someone who is so delusional in his lack of self awareness of his own intellectual contradictions that he ignores them, becoming enraged at any who would won’t accept his illogical, logic. A person whose overweening ego represses the oily, dark passages within his Id. I can only speculate at what this morally ugly hater hides deep inside his personality and I shudder at what I speculate would be found there.

  9. mespo727272 says:


    You re right it was 5-4. I’ve corrected it. Like Gene my initial alert on iPhone said 6-3 like King v, Burwell.

  10. mespo727272 says:

    The best example of this I recall is when Nino chastised Ruth Bader Ginsburg for referring to the “grounds” at the University of Virginia as a “campus” instead of the more pretentious name the school uses. That little insult to a female Justice in the VMI admission of females case solidified in my mind what kind of guy Scalia truly is. And it marches lockstep with your analysis.

  11. pete says:

    “jiggery-pokery” Darned arcane legalese.

    Does a cost benefit analysis of pollutants include health care costs?

  12. mespo727272 says:


    The EPA estimates $9.6 Billion to implement and $6 Billlion in tangible benefits.

  13. Elaine M. says:

    Take a Spin on the Antonin Scalia Insult Generator!
    You scruffy, bearded, sandal-wearing idiot.
    —By Tim Murphy | Fri Jun. 26, 2015

  14. In re “Update”: It’s irony, but I like it.

    In re “Insult Generator”: LOL

  15. Mike Spindell says:

    I read the update and took my spin. It’s early (for me) in the morning and my emotion is one of stupefaction that this vile man has been presented as a legal scholar worthy of the highest judgeship in the country. As I stated earlier, he reeks of disturbed psychological pathology. While it is easy to dismiss him as just another insincere political lackey of religious zeal, wealth and power, my gut sense is that he believes everything he says and writes. It is, in my opinion, his lack of insight into the contradictions of his opinions that characterize him as psychologically unstable.

  16. Bob Stone says:

    Sorry Mark,

    I agree with Scalia’s dissent in King v Burwell for the same reason I despise the holding in Kelo v. City of New London. Words of laws have meaning and Article III neither empowers the Court to simply ignore them nor revise a poorly drafted law.

    You can also count me as against the idea of attempting to bypass the separation of powers with the creation of a fourth branch of government that promulgates, executes and interprets its own laws.

  17. mespo727272 says:


    I have no problem with a dissent based on a different statutory interpretation but I have significant problems with a high-ranking public servant who was adamantly for something before he was adamantly ag’in it. Even Scalia himself has no problem avoiding “nitpicking” to further the manifest will of Congress. Supreme Court justices should be more than proof-readers. They are limited censors and if the law is susceptible to a constitutional interpretation and a non-constitutional one, it should receive the former from the court.

  18. Bob Stone says:


    If you’re looking to pin Scalia as a hypocrite then you need only compare his work in Bush v. Gore with his dissent in the gay marriage case.

    Regardless, one judge’s hypocrisy does not constitute a license to ignore the law to obtain whatever result you want.

  19. mespo727272 says:


    Of course, you’re right, he’s a hypocrite but as Mike S notes with an apparent particularly virulent personality disorder requiring him to castigate and lecture his peers. But I do like pointing both out from time to time lest we forget. I think the majority got it right in King v. Burwell as evidenced by the 6-3 vote. As for the gay marriage case, that was pure judicial coat tailing (you know going faster than the slowest person but slower than the fastest) with the times. They saw it was now safe politically to do the right thing, so they did.

  20. mespo727272 says:

    On a related note, what does the King v. Burwell decision say about JT’s chances in U.S. House of Representatives v. Burwell, to attack the law on separation of powers grounds? DOA? No arrival at all?

  21. Bob Stone says:

    King v. Burwell is wrong on the same level as Kelo. Good intentions only serve to pave the highway to lawlessness.

    Regarding the gay marriage case, Chief Judge Kaye sold me on that right back in 2006 in her dissent in Hernandez v Robles

    It all comes down to an order of operations problem. While there’s no natural right to marriage, i.e. it being a creature of statute, the Court cannot deny the fundamental rights, as well as civil rights, inextricably linked to the concept.

  22. Bob Stone says:

    I think JT’s case is DOA; regardless of its merits.

    “That the chief justice went one way on health care and another on marriage tells us nothing at all about the law or the Constitution: It tells us about John Roberts. And that is the problem.” — Kevin D. Williamson

  23. Mike Spindell says:

    Don’t worry Mark, JT will get well paid for the case, win or lose.

  24. mespo727272 says:

    Mike S:
    The public contract I read said they agreed to a cap of $350K through the last Congress. My guess is the new Congress upped the ante.

    Click to access Turley-Contract.pdf

  25. mespo727272 says:


    Professor Fish is a man after my own heart.

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