I’m not sure it’s completely penetrated the public consciousness that when the Supreme Court hears oral arguments in King v. Burwell next month and votes on the case in private conference two weeks from tomorrow that Obamacare really is on the line, and the ultimate outcome is very, very uncertain. As a sign of how dire things are for Obamacare, defenders of the law are crafting their arguments for Chief Justice John Roberts and making what is essentially a political argument: that the integrity and viability of the Supreme Court as an institution is on the line in this case.
That’s not to say that Obamacare defenders don’t have meritorious legal arguments. For months now, we’ve documented the contours of those arguments and recorded the overwhelming evidence of what Congress intended when it authorized the state and federal exchanges. It’s maddening to anyone who has followed the legislative and political battles since 2009 that such a dubious legal argument against Obamacare is even being considered. But as dubious as it is, it’s likely to win over the conservative justices, including Anthony Kennedy. But Roberts is considered still in play, mostly because he came to Obamacare’s rescue in the last big legal challenge to the law in 2012, not necessarily on the merits but because the historical reputation of the court was at stake.
If you’re pinning your hopes on a political argument to the chief justice, it’s a bad sign and gives you a good idea of how desperate the circumstances are. But whether most Americans, even well-informed people, realize where things stand is just not clear to me.