Charles R. McElwee: Senator Manchin makes a good vote in Gorsuch (Daily Mail)

I applaud U.S. Sen. Joe Manchin’s decision to support the confirmation of Neil Gorsuch as Justice of the U.S. Supreme Court. Manchin exercised sound judgment.

Stated bluntly, Gorsuch is needed on the Supreme Court to counterbalance the misguided judicial philosophy of four of its current justices: Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The dispositions of these justices, as revealed in their court opinions, are to interpret and rewrite acts of Congress to conform to “social and political pressures,” and their own policy preferences, which have “no bearing on the principled choices that the Court is obliged to make,” and to claim “justifications” for their decisions that are not “legally principled” and “beyond dispute.”

Although not directed toward the four justices, the quotations in the preceding paragraph are from the Supreme Court’s opinion in Planned Parenthood v. Casey, 1992.

Nevertheless, they describe, in my view, some of the court opinions of these justices — specifically, their opinions in National Federation of Independent Businesses v. Sebelius, 2012, and King v. Burwell, 2015, both of which involved the Affordable Care Act, enacted in 2010.

In both of these cases, a majority of the court, including the four above-named justices, rewrote the ACA to save it from a “spiraling death.”

In Sebelius, these four justices joined Chief Justice John G. Roberts in substituting the word “tax” for the “penalty” that the ACA imposes for failure to buy health insurance, in order to bring the act within Congress’ taxing powers.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. dissented, in part, stating the court “cannot rewrite the statute to be what it is not.”

Breyer, Ginsburg, Sotomayor and Kagan joined Roberts and Kennedy in Burwell to rewrite another provision of ACA to save it from a “death spiral.”

In that case, the question before the court was whether tax credits or premium assistance amounts were authorized for enrollments in an ACA insurance plan through a federal exchange, even though Section 36B of the Internal Revenue Code plainly limits tax credits to insurance enrollments through “an exchange established by the state under [42 U.S.C. § 18031]” of the ACA.

In my opinion, the court’s majority in Burwell distorted the “context” and “the overall statutory scheme” of the ACA in order to make the plainly worded phrase in Section 36B unclear and ambiguous, and in resolving the ambiguity they created, made that Section now read “an Exchange established by the State under [42 U.S.C. § 18031] or an Exchange established by the Secretary of Health and Human Services under [42 U.S.C. § 18041].”

Scalia in dissent described what the Burwell majority did as “[p]ure applesauce” and engaging in “interpretative jiggery-pokery.” He also observed that “context only underscores the outlandishness of the court’s interpretation.”

The majority of the Burwell court in assessing the ACA concluded that it contains more than a few examples of “inartful drafting,” and “[a]s a result the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

One could say, just as accurately, that the reasoning of the majority of the Supreme Court in deciding Burwell and Sebelius does not reflect the type of care and deliberation that one might expect of the Supreme Court in interpreting such significant legislation.

Finally, the court’s majority observed that “we must respect the role of the Legislature to take care not to undo what it has done.” They should also have recognized that “we must respect the court’s role to take care that we do not do what the Congress has not done.”

Scalia wrote a caustic dissent to the court’s majority opinion in Burwell, in which Thomas and Alito joined, wherein he stated “Under all the usual rules of interpretation ... the government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present court: The Affordable Care Act must be saved.”

In concluding his Burwell dissent, Scalia wrote another scathing rebuke: “the discouraging truth [is] 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,” one of them obviously being, in Scalia’s mind, the ACA.

It is my opinion that the majority of the court in the Burwell and Sebelius cases rendered a disservice to the court’s legitimacy and fitness to interpret the nation’s laws, and compromised their individual integrities to “uphold and sustain [their] favorites,” the ACA in these cases.

I expect that Gorsuch will be in the mold of Scalia, possessing judicial qualities that the court in its present makeup so sorely needs.

Thanks again to Manchin for looking beyond party politics and voting to affirm a great justice to the Supreme Court.

Charles R. McElwee of Charleston is a lawyer with the firm Robinson & McElwee PLLC. He can be reached at

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