Linda Greenhouse wrote a great summary of what’s going on with King v Burwell, Overturning Obamacare Would Change the Nature of the Supreme Court. Among other things, she showed that statements and findings of even the most conservative justices show that they should find for the government and put an end to this attack on the federal healthcare exchanges once and for all. But Greenhouse is hardly assured. She ended the article by noting that she thinks the justices who decided to take this case probably think of it as a second chance to destroy Obamacare. And her article is an attempt to alert them to the fact that doing this would have huge consequences for the court itself.
I am probably naive, but I’ve been harboring a more positive scenario. Couldn’t it be that the Supreme Court is trying to send a signal to the conservative movement that it needs to move on? I know if I were a conservative, I would find King v Burwell extremely embarrassing. The idea of the challenge is that Obamacare is so horrible that it is okay to screw over middle class people — most of them in Republican dominate states. And this is not to repeal Obamacare; it is just to maybe move the politics in a slightly better direction for a future repeal. What’s more, it wouldn’t just be bad for the middle class. It would also be terrible for doctors and hospitals. Even if you really want to repeal Obamacare, this is not the way.
So it isn’t ridiculous to think that smart conservatives might want to crush this nonsense. And a solid 9-0 decision would not only stop this case but would likely stop the whole “destroy Obamacare in the courts” industry. It would signal that the Supreme Court is really not interested in this and that if the law is to be repealed, it needs to be done democratically through legislation. This is what I really want to believe.
Sadly, I fear that I am being naive. If there is anything that has become clear watching the Supreme Court over the last three decades, it is that justices are anything but objective. They come to quick decisions and then justify them. And the more a justice claims that he is just following the law, the more subjective his process is. So I have no doubt that Antonin Scalia will be able to justify whatever it is he wants to believe. After all, Scalia didn’t have a problem using “equal protection” for that one time in George W Bush’s case. And Samuel Alito is arguably worse. And after Anthony Kennedy’s behavior during the previous Obamacare case, I wouldn’t put anything past him. I actually have a bit more respect for Clarence Thomas, and think he is more likely to be consistent. But you never know.
I think it is a good thing that Linda Greenhouse is trying to make a preemptive strike against the Supreme Court embarrassing itself again. But we know from things Scalia said that he won’t see anything published in The New York Times. Maybe if we can get Rush Limbaugh to cover it, some of it might get to him. But Greenhouse was overstating things when she wrote:
But if the conservatives on the Supreme Court cared about the verdict of history, they would have acted very differently up until now. The only conservative who really seems to care about history is Roberts himself. But he’s facing a bleak entry in the history books. If King v Burwell comes down to another 5-4 decision, people are going to say that the Roberts Court finished the destruction started by the Rehnquist Court. If Roberts is going to save his legacy, he ought to be praying for some fatal heart attacks among the conservatives on the Supreme Court.
But I still hope that the conservatives are just tired of all these Obamacare cases and want to see them end. But I expect a 5-4 decision one way or the other.