WASHINGTON — When a federal appeals court in the District of Columbia ruled to invalidate Obamacare subsidies for millions of Americans back in July 2014, conservatives saw a golden opportunity to cripple the law they detest, and they set their sights on Chief Justice John Roberts to finish the job.
“This case will give the Chief Justice the opportunity to atone for his judicial sin of two years ago. Not many judges have the chance to make up for the mistakes of the past. Let’s hope he takes advantage of the opportunity,” former Bush administration lawyer John Yoo wrote that night in the conservative magazine National Review.
It was choice language to direct at a devout Catholic, but it presaged a furious legal and lobbying effort directed at Roberts after the Supreme Court agreed to consider the subsidy issue in a related case, King v. Burwell.
All eyes will be on the chief justice in the ornate Supreme Court chamber during Wednesday morning’s oral arguments in the case, as top lawyers on both sides view him as the most likely swing vote in the deeply consequential case that could determine whether 7 million people in some three dozen states will retain their health insurance.
And that has many legal and political observers wondering: Is John Roberts willing to wreck a centerpiece of Barack Obama’s presidential legacy, three years after he sided with the four liberals on the Supreme Court to save most of it?
Legally it is an arcane dispute over how to interpret a statute — there are no grand constitutional questions to capture the imagination of Americans. At issue is whether one section of the law precludes premium tax credits for Americans who buy insurance on the federally-run exchange. Does that one seven-word provision carry the day? Or does a broader reading of the statute lead to the conclusion that it was intended to expand coverage broadly to the uninsured whether states set up their own exchanges or deferred to the feds.
Progressives have dramatically stepped up their efforts to court the chief justice, making legal appeals to his respect for states rights (by arguing that it would violate the right of states if the feds stripped away subsidies without a clear warning that they were contingent on them building state-run exchanges) and political appeals to his protectiveness of the Supreme Court’s institutional standing (by arguing that its reputation as an impartial arbiter of the law would suffer) if it yanks insurance subsidies from millions of people and undermines a core pillar of Obamacare.
“It’s important for the Court to understand the consequences of what it’s doing so it takes the law seriously. Sometimes the consequences, when significant enough, can convince the court to rise above the difficult politics,” Yale law professor Abbe Gluck, who signed a brief supporting the government’s position, said in an interview with TPM.
Protests outside the Supreme Court during the last major legal challenge to Obamacare in 2012 (AP Photo/Carolyn Kaster)
The counter-argument from conservatives against the progressive appeals to Roberts’ is that interpreting the text of the law to forbid the subsidies would reflect judicial modesty, not activism.
“The effort to try to appeal to his legacy — it goes to show that the underlying textual arguments are weak,” Jonathan Adler, an architect of the lawsuit, told TPM. “The most modest thing a judge can do is to hew as closely as possible to the actual text that Congress has enacted.”
Congressional Republican leaders, too, are doing their part to try and make Roberts comfortable with blowing a hole through Obamacare. They have endorsed the legal challenge, and have written numerous op-eds in recent days saying they’re working on solutions to mitigate the pain for Americans who might lose their coverage. They haven’t offered legislation to do that yet.
The White House counters that message with a message of its own: Don’t believe it.
“We’ve seen quotes and op-eds from Republicans about a GOP ACA alternative for years, but we’re yet to see a single vote held on such an alternative since the law was passed,” a senior Obama administration official said in a statement to TPM. “So we don’t think anybody takes this very seriously.”
Apart from Roberts, Justice Anthony Kennedy is also a potential swing vote, but Obamacare supporters privately say they’re less optimistic about winning his support in King given his animosity toward the law expressed in 2012 and in the 2014 case about the birth control mandate. The broad expectation is that the four Democratic-appointed justices will uphold the subsidies while the three other Republican-appointed justices will rule against them.
Arguing for the Obama administration is U.S. Solicitor General Don Verrilli, who was caught off guard by a conservative onslaught during the 2012 arguments over the individual mandate and widely panned for his halting performance. The challengers’ lawyer is Michael Carvin, who also helped argue before the justices in the 2012 case which came within one vote of wiping out Obamacare.
It remains to be seen whether they’re ready to wreck the law this time. And the final decision may come down to Chief Justice Roberts once again.