Hooray for the DC Circuit Court! It just withdrew the July decision of a three judge panel that upheld the Halbig v Burwell challenge to Obamacare. I wrote about this case just last night, Originalism, Textualism, and Politics on the Supreme Court. Halbig is a stupid case based upon what is little more than a typo in the Patient Protection and Affordable Care Act, which itself is contradicted by other language in the law.
But there really has been an amazing degradation of judicial thinking on the right over the last three decades. One can certainly argue that liberal justices were “reaching” in the 1960s and 1970s. But since that time, “legislating from the bench” is almost entirely a conservative activity. And that is especially true on the Supreme Court where there is only one liberal compared to five conservatives, three of the nutty variety.
In July, the two Republican appointed judges on the Circuit Court panel found as their politics dictated. So the Obama administration asked for an en banc rehearing. This is a hearing where the whole court is involved. Since the Democrats have now appointed most of the judges, we assume that they will find against the plaintiffs because it is only reactionary conservatives looking for any excuse to destroy Obamacare who would find the logic of Halbig compelling.
Because a Fourth Circuit Court panel unanimously found against the same argument, there was good reason for the Supreme Court to look into this case and make a final decision. (There are a total of four very similar cases making their way through the courts.) But with today’s DC Circuit Court decision, that becomes less likely. Of course, those pushing this case have already petitioned the Supreme Court. According to Jonathan Cohn in the article above, most legal scholars think the Supreme Court will at least wait to see how the DC Court finds. But you just can’t say with this court.
Regardless, this is very good news. If the Fourth and DC Circuit Courts had stayed in conflict, the Supreme Court would have been forced to clear up the law. Assuming the DC Circuit Court overturns the panel decision, there is no necessity to do so. But it only takes four Supreme Court justices to request a review. And we have three extremists on the Court. And when it came to Obamacare the last time it was at the Court, it seemed that Anthony Kennedy was as extreme as anyone. So we can’t say for sure.
Cohn quoted Andrew Koppelman who said pretty much what I think:
I think that’s the one thing that keeps Obamacare relatively safe: Chief Justice Roberts’ concerns about going down in history as the partisan hack he is. Sometimes vanity is a good thing. I just wish that Roberts would expand his view of what hurts the reputation of the Court. Obamacare is the least we could expect. It will be Citizens United v Federal Election Commission that Roberts will be remembered for. In fifty years, people will ask, “Couldn’t they see that would destroy democracy in America?” But that apparently is too much to ask of the savior of Obamacare. I’m not saying he will be remembered like Roger B Taney, but history won’t be much kinder. As for the others: if they even decide to hear the case, it will be yet another nail in their historical coffins.