Supreme Court won’t gut Obamacare

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From everything that’s been written about the Supreme Court’s hearing of the oral arguments for King v. Burwell today, you’d think Justice Kennedy is the man of the hour. He made critical remarks about the lawsuit, even questioning whether the plaintiffs had standing to sue! And he correctly pointed out that if the plaintiffs who are attacking Obamacare have their way, a new weapon of federal coercion against states’ rights will be enshrined in constitutional precedent, as states that refused to go along with Obamacare by setting up health care exchanges are punished by soaring premiums.

The lead attorney pushing the lawsuit to kill Obamacare, Michael Carvin, sidestepped this issue when Kennedy pointed it out, trying to dodge by protesting that the government hadn’t raised that point as a counterargument. Kennedy came right back at him — “We sometimes think of things the government doesn’t argue!” To which Carvin lamely replied, “Well, I certainly hope you do in this case, but not – not on this question.”

As for the question of proper standing to challenge the law, it was Justice Alito who dodged the question on Carvin’s behalf. When Don Verilli, lawyer for the Obama administration, somewhat bumblingly brought up the fact that none of the four plaintiffs in King v. Burwell had experienced any harm from the federal government subsidizing their fellow citizens’ health care, Alito shot back incredulously, “What are you suggesting? Should we have – should we have a trial here?” (The Supreme Court doesn’t do trials). In other words, “Don’t bother us with the fact that none of the plaintiffs have a reason for being here!”600px-Seal_of_the_United_States_Supreme_Court.svg

Even Alito might be feeling a little testy after the embarrassing low that the Supreme Court has hit by entertaining this case. Not having standing is actually the least of the legal problems for the plaintiffs in King v. Burwell, who hope to cause a collapse for Obamacare in the 28 states that haven’t set up their own state exchanges, where millions of Americans rely on federal subsidies to afford health care that their own Republican state governments refused to support. King v. Burwell hinges on a typo in the 800-page Affordable Care Act, which declares that subsidies will be available for exchanges “established by the State.”

The laws creators, from Nebraska’s Senator Ben Nelson to Connecticut Rep. Rosa DeLauro, have testified that it was their intention to make subsidies available to poor people regardless of what their state governments did. Doesn’t matter! Republicans found the word “by” where lawmakers should have said “for” in the 800-page bill, and now they’re using it to trigger a death spiral in health care enrollments and ultimately take insurance away from more than 10 million Americans.

Of course, Carvin will never admit this, and neither will his allies on the Supreme Court. In what may be a low point in his judicial career, Justice Scalia tried to pretend with a straight face that if they struck the law down based on the typo, the Republican-controlled Congress would be more than happy to fix the health care law, good as new. To which Don Verilli replied, “This Congress?” to laughter all around.

That’s right — Scalia tried to argue that this cowardly Congress, which could barely keep our Department of Homeland Security open last week thanks to partisan bickering even as ISIS looks westward, would rise above the partisan fray to save Obamacare. Just embarrassing.

But the most disingenuous question of all was asked by Justice Alito, who wanted to explore the chance of keeping the tax credits that support health care for low-income people open through 2015, even if the law is struck down. His subtext: Don’t worry, Justices Roberts and Kennedy. You’re worried about the Supreme Court’s legacy if we smash this law and plunge the U.S. health care system into chaos. But it doesn’t have to be thaaaat bad!

It’s a shrewd judicial dog whistle because Roberts’ concern for prestige of the Court was the only thing that saved Obamacare back in 2012. Sources say Roberts agreed to rule the law unconstitutional at first … but as summer approached and the ruling’s consequences sank in, he looked for a way out, and found one by calling Obamacare a “tax.” And even as he upheld its constitutionality, he crippled it in a way no one foresaw, by making Medicaid expansion optional in the states. Sure enough, GOP state legislatures would use that ruling to deny millions of poor people coverage.

John Roberts' 2012 ruling allowed dozens of Republican-led states to boycott medicaid expansion under Obamacare (Wikipedia).
John Roberts’ 2012 ruling allowed dozens of Republican-led states (pictured uncolored) to boycott medicaid expansion under Obamacare (Wikipedia).

Is John Roberts looking for redemption with conservatives by dealing Obamacare a crippling blow this time around? I don’t think so. He doesn’t have the stomach to destroy the law over a typo and tarnish the Court’s image with the ensuing havoc. Big, nuclear rulings aren’t his thing. He’s playing a long game.

Look at his record. In Citizens United in 2010, he gutted campaign finance reform by allowing limitless donations to SuperPACs … but he didn’t throw out donor limits altogether, much as Clarence Thomas wanted him to. In 2013, he took a dagger to the Voting Rights Act, by allowing southern states with a history of discrimination in voting to enact voter ID laws without preclearance from the Department of Justice. But he didn’t rule the Act unconstitutional – he was content just to weaken it and give southern, Republican-led states a little more free rein for their machinations.

And that’s the game John Roberts is playing. I think that a bombshell ruling where he takes a hammer to progressive dreams like an avenging angel of conservatism is unlikely. It’s not in his judicial DNA.

No, he’ll undermine liberal priorities slowly, gradually, apologizing when he can. He’ll praise the laws even as he undermines them – “The Act has proved immensely successful at redressing racial discrimination and integrating the voting process,” he said of the Voting Rights Act in his ruling that weakened it. John Roberts will slowly, civilly, and at times regretfully pursue a conservative agenda from the bench – and he’ll do it in a style that he believes will preserve the reputation of a Court he treasures.

John Roberts is sworn in as Chief Justice by John Paul Stevens on September 29, 2005, as President Bush looks on. (Wikipedia)
John Roberts is sworn in as Chief Justice by John Paul Stevens on September 29, 2005, as President Bush looks on. (Wikipedia)

It’s an interesting evolution for a Justice who pledged in his 2005 confirmation hearings to be an umpire, not an activist. “Judges are like umpires,” he said then. “They don’t make rules. They apply them. It is a limited role.”

Yet this is a man who had done more to advance a conservative vision than anyone in America since George W. Bush. From Citizens United to the VRA ruling to the thwarting of Medicaid expansion, he’s done what Mitch McConnell and John Boehner have never been able do – roll back some of President Obama’s agenda.

But you can still stop him. Justices Kennedy and Scalia will be 79 and 80 years old when a new President is sworn in on January 2017. Replace just one of them with a Democratic appointee, and we suddenly have a Supreme Court that has conservatives clenching their teeth as they await its newest rulings every June.

The ideological power balance of the Supreme Court will be at stake in 2016. And however the Supreme Court rules this summer, there’s one way to undo their ruling: vote. And for God’s sake, vote for Democrats. Because whatever Roberts decides, know this: Conservatives wouldn’t be going to these lengths to sabotage Obamacare if the law weren’t already working.