JEFF JACOBY
By Jeff JacobyGLOBE COLUMNIST 
SHUTTERSTOCK
DURING HIS Supreme Court confirmation hearings in 2005, then-Judge John Roberts emphasized his strong belief in judicial modesty. “Judges are like umpires,” Roberts famously said. “Umpires don’t make the rules; they apply them.” If confirmed as chief justice, he promised, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
But it was no impartial umpire who authored last week’s 6-3 opinion in King v. Burwell, the Obamacare subsidy case.
The specific issue was whether health plans purchased through insurance exchanges established by the federal government are eligible for tax subsidies. Since the law explicitly restricts subsidies to “an exchange established by the state,” the answer should be obvious. But disallowing subsidies in states that refused to establish exchanges might have caused Obamacare to implode. That wasn’t an outcome Roberts wished to risk, so he turned the straightforward meaning on its head. “An exchange established by the state,” he wrote, also means an exchange not established by the state.
Roberts is hardly the first justice to succumb to the temptation to contort the law’s plain text to generate a desired policy result. Ten years ago, the court infamously ruled in Kelo v. City of New London that private homes could be seized by eminent domain and given to corporate developers. The Fifth Amendment authorizes such takings only when the government needs the land for a legitimate “public use” — for instance, to build a highway. But in a 5-4 opinion by Justice John Paul Stevens, the court decided that “public use” could also mean private use, so long as the new owners were expected to create new jobs or pay more taxes than the dispossessed former owners. In effect, Kelo empowered government to transfer almost any owner’s property to a more powerful private party: exactly what the constitutional language forbids.
The Commerce Clause is another constitutional passage whose meaning has been corrupted by judicial presumption.
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