Power

How Many Trips to the Supreme Court Will Obamacare Take?

Early signs point to another Obama administration victory before the Roberts Court on health-care reform. Will it be the last time the law appears before the Court?

Early signs point to another Obama administration victory before the Roberts Court on health-care reform. Will it be the last time the law appears before the Court? Supreme Court via Shutterstock

All eyes were on Chief Justice John Roberts going into Wednesday’s arguments in King v. Burwell, a case that takes yet another swing at the Affordable Care Act (ACA), this time by arguing that the federal government cannot offer subsidies to middle- and low-income people in states that have refused to set up their own insurance exchange. Thought to be one of two possible swing votes in the Obama administration’s favor, Roberts, who previously joined the liberal justices in upholding the law in NFIB v. Sebelius, remained uncharacteristically quiet during the arguments, which ran over their allotted time, chiming in only occasionally and on nothing of substance.

Instead it was Anthony Kennedy who emerged as the conservative justice most likely to side with the Obama administration. Considering how critical Kennedy was of the ACA during the law’s first trip to the Supreme Court, this should signal good news for progressives and anyone else who doesn’t want to see millions of people in the United States stripped of tax credits that help them pay their insurance premiums. If it turns out that Justice Kennedy has indeed switched sides from Team Government Broccoli to Team Obamacare—and I’m not entirely convinced he has—Justice Sonia Sotomayor is to thank. It was Sotomayor’s questioning of Michael Carvin, the attorney for those challenging the tax subsidies, on the very real-life consequences of his clients’ legal claim that opened the door for Kennedy to raise what he saw to be a “serious constitutional problem” with the challengers’ claim.

It’s worth noting that Carvin made a peculiar statement in a recent Wall Street Journal article about how the ACA is a law written by “women and minorities” rather than “dead white men,” meaning, he explained, that “[i]t hasn’t had time to ‘grow’ or ‘evolve,'” reportedly “mocking terms liberals have invoked for constitutional doctrines that conservatives deride as unsupported by the 18th century text.” The Journal article continued: “He cites an unlikely inspiration for his fight: Atticus Finch, who in ‘To Kill a Mockingbird’ defends a black man charged with raping a white woman in small-town Alabama’s racist justice system.”

As Erin Gloria Ryan of Jezebel put it: “Hmm.”

Carvin opened his arguments by trying to convince the justices that this was a straightforward case of statutory interpretation that rested on the meaning of a simple phrase: “established by the state.” Justice Elena Kagan destroyed that argument in one charming hypothetical that involved Kagan’s eager law clerks and some fuzzy direction on a briefing memo, resulting in Carvin admitting that yes, when interpreting a statute, context does matter.

“So I have three clerks, Mr. Carvin,” Kagan started. “Their names are Will and Elizabeth and Amanda. OK?” Kagan continued:

So my first clerk, I say, Will, I’d like you to write me a memo. And I say, Elizabeth, I want you to edit Will’s memo once he’s done.  And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?

Carvin tried to laugh off Kagan’s question, but ultimately conceded that the answer to Kagan’s question depends very much on the context of her hypothetical conversation with those clerks.

After Kagan was able to get Carvin to concede his client’s main argument—that context in interpretation does indeed matter—Justice Sotomayor proceeded to bait a hook for her colleague Justice Kennedy on the issue of states’ rights and the federal tax credits. If a state’s residents can’t receive subsidies, Sotomayor pushed Carvin, won’t that lead to a “death spiral” in that state’s insurance market, where only the sickest residents remain in those exchanges? That would would cause everyone’s insurance costs to rise, Sotomayor suggested, leading more people to drop out of the insurance market.

States would then feel like they have no choice other than to establish their own exchanges to ward off this “death spiral.” This scenario, Justice Sotomayor further suggested, is so coercive that it violates the Constitution.

Kennedy took Sotomayor’s bait, jumping in to say, “If your argument is accepted, the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.” When Carvin tried to deflect Kennedy’s concerns, noting that it was an argument the Obama administration failed to raise, the justice had no problem taking credit for it. “Sometimes we think of things the government didn’t,” Kennedy said.

As good as that all sounds, it is far from clear that the Obama administration has enough votes to survive yet another challenge to its health-care law. Predictably, Justices Antonin Scalia and Samuel Alito were openly hostile to the government’s case and the possible ramifications of kicking millions off health insurance. And Justice Kennedy was predictably maddening with a line of questioning of Solicitor General Donald Verrilli that clouded up any signs Kennedy might side with the administration. Kennedy suggested that Congress may have included the fall-back option of federal exchanges so that the states could “show that they had concerns about the wisdom and workability of the [ACA] in the form that it was passed.”

Y’all, I’m sorry, but I have no idea what Kennedy means there. I just don’t.

By the end of the arguments, all that was apparent was that it will be a long three months before the Roberts Court issues its decision. Justices Alito and Scalia appeared to support the challengers, with the safe money on Justice Clarence Thomas joining their ranks. Similarly, it was clear the administration had the support of Justices Kagan, Sotomayor, Breyer, and Ginsburg. And the chief justice? I remain optimistic that he will do the right thing, both legally and politically, and side with the administration here. But I wish I was as optimistic that if he did it would finally put to rest the attacks from the right on health-care reform.