Dahlia Lithwick wrote a great overview of Wednesday’s King v Burwell hearing, High Drama for Obamacare at the High Court. She’s a very playful writer and it is well worth reading the whole thing. It is pretty much all that I know about the hearing. And I have to say, I don’t know why so many observers — including Lithwick herself — seem so reticent or even gloomy.
Chief Justice Roberts said almost nothing. That could be ominous, I suppose. But I think it just means that Roberts knows this is a highly contentious case and maybe in this case it is a good idea to keep a low profile. The bad reading, of course, is that if he were planning to find for the government, why not clearly signal it so that people wouldn’t be left in doubt for the next few months. But I don’t think that would be his thinking if he were concerned about his and the court’s reputation.
It certainly seems to be the case that Kennedy is siding with the government. He seemed to be following two different tracks that lead to a good outcome. The main one is the argument that if the law reads the way the plaintiffs want, that means that the federal government had excessive leverage over the states. Basically, it was saying, “Sign up for full Obamacare or we are going to destroy your state.” It’s an interesting argument, because the last time the Supreme Court waded into these waters, it decided that the states had the right to opt out of the Medicaid expansion. So Kennedy seems to be saying that since the Court decided that way, it has a kind of obligation to not cause the states any more harm.
The whole thing is an outrage, though. What the “liberals” on the court were saying made perfect sense. You really have to tie yourself in knots to find this challenge compelling. Check out this exchange the Lithwick recorded:
When Carvin says “No,” Kagan retorts: “You run a different shop than I do.”
Michael Carvin is the plaintiff’s attorney. I suppose he had to answer that way, but it is ridiculous. I’d hate to be a lawyer that spends his whole life making stupid arguments all for the benefit of those who already have more money than God.
What Scalia and Alito had to say didn’t bother me all that much. Alone, I wouldn’t think it meant that they were necessarily going to vote against the government. But there was no real discussion of what was supposed to be the big issue: whether four words out of an enormous law could trump all the rest. Instead, it was more stuff like you might hear on a slightly elevated right wing talk radio station. And I think what it means is that in any clearly partisan case like this one, the evil trinity on the Supreme Court will always side with the conservatives. If Roe v Wade came before them, they wouldn’t look at the law; they would just know that they were going to overturn it because that’s the side they are one.
It’s all embarrassing. I just hope the rest of the world isn’t watching. But it is a perfect microcosm of American politics. The “left” is made up almost entirely of moderates — people slightly to the right of Richard Nixon. The “right” is just crazy. And the “center” is just a couple of justices we all hope will occasionally be reasonable. I think we are safe on this case. But we are looking at decades of bad times here in the United States.
