A Hopeful Theory of King v Burwell

Linda GreenhouseLinda 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 It would signal that the Supreme Court is really not interested in this and that if the law is to be repealed, it needs to be done democratically through legislation.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:

To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.

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.

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

4 thoughts on “A Hopeful Theory of King v Burwell

  1. They rigged one election. Compared to that, what is declaring compulsory health insurance as unconstitutional?

    Next: income tax. Notice how it works out for the centre-right Democrats. You have to vote for their guy, or you’re gonna get someone worse than Scalia!

    • Yeah, I have to admit that this is on my mind a lot. After deciding along party lines to appoint a president, is there anything more that can damage the reputation of the Supreme Court? And that was when the conservatives on the court were a good deal more reasonable. But this would have huge practical effects on people. Suddenly, a lot of people who had healthcare before Obamacare would not have it. Many, if not most, of them would blame it on the law. But I think the narrative that would eventually take hold would be that the Suprme Court did it. Of course, people of my age tend to think higher of the Supreme Court that it deserves. I am very much looking forward to Ian Millhiser’s book that is coming out in March, Injustices: The Supreme Court’s Nearly Unbroken History of Comforting the Comfortable and Afflicting the Afflicted:

      Few American institutions have inflicted greater suffering on ordinary people than the Supreme Court of the United States. In this powerful indictment of a venerated institution, constitutional law expert Ian Millhiser tells the history of the Supreme Court through the eyes of everyday people who have suffered the most as a result of its judgements. The justices built a nation where children toiled in coal mines and cotton mills, where Americans could be forced into camps because of their race, and where women were sterilized at the command of states. The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy. Nor is the modern Court a vast improvement, with its incursions on voting rights, its willingness to place elections for sale, and its growing skepticism towards the democratic process generally.

      I’m not hopeful for the future. And Samuel Alito — the justice who most scares me — is only 64.

      • If I were an American, I’d be in a real dilemma. Knowing what I know – how can I volunteer for the Democrats? Knowing what I know – all the realistic Republican candidates for president would be very likely to appoint someone even scarier than Alito.

        Be well, Frank. My dilemma is this year – can I volunteer for these guys (New Democratic Party) again? Can I continue with my tiny donations? Every time I hear about party meetings they’re talking about disinviting socialists from the party. The only resistance seems to be from a bunch of Trotskyite lunatics. This group is too dumb for me to join; the mainstream of the party is unwilling to behave as open leftists.

        So be of cheer always Frank – we’re saps up here too.

        • Yeah, I know it is bad all over. I just don’t understand why the Democratic Party can’t be made up of people like Al Franken. He is in no way a radical. He’s too conservative for me, but he really ought to be what the Democratic Party is all about. As it is, he’s a shining light in the party — especially on issues like net neutrality and privacy. I don’t expect perfection in politics. I’m a pragmatist. But what we have is just pathetic.

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