Disturbing move by the Supreme Court

The US Supreme Court on Friday decided to hear the case King v. Burwell of whether the subsidies provided by the health exchanges set up by the federal government under Obamacare are constitutional. This is ominous. Why?

The US Supreme Court usually takes on a case either because there is an important constitutional issue to be resolved or because there is a split in the lower courts.

Neither is true here. This case hinges on an interpretation of a few words in the bill and who gets to do so, hardly a major question to be resolved. There has also been no split among the Appeals Courts on this issue. The Fourth Circuit Court of Appeals had ruled in King v. Burwell that there was no problem with the federal subsidies. In a similar case, a panel of the DC Court of Appeals ruled 2-1 against the subsidies in Halbig v. Burwell, momentarily setting up a split but then the whole court decided to re-hear that case and that effectively vacated the panel’s ruling. Oral arguments were scheduled for December 17. It was expected that the Supreme Court would wait until this was resolved because considering any action.

The sudden decision to accept the King v. Burwell case and intervene before that process is completed, and effectively make the DC court’s review and hearings on Halbig v. Burwell moot, suggests to me a political motive. The decision to accept the case suggests that at least four justices have the inclination to reverse the Fourth Circuit’s verdict.

But why the rush? Why not wait until the DC Circuit has issued its own verdict? I think it comes down to the political calendar.

The Republicans, even though they won control of Congress in last week’s elections, do not have the majorities needed to override a presidential veto of a bill to repeal Obamacare. Hence they would have to hope to win control of both houses of Congress and the presidency in 2016 to do so. Their only hope is through the Supreme Court. But there is good reason to think that people will get to like Obamacare as it gets entrenched as time goes by and more and more people benefit from it. If it is overturned by the courts, there might be great anger and if this happens close to the elections, the Republicans would take the hit.

If the Supreme Court waits for the DC circuit to rule and then takes on the case, the verdict will not likely come until the spring of 2016, right in the middle of the presidential campaign. By taking on the case now and issuing a verdict some time in the spring of 2015, they can hope that the notoriously short political memories of the American media and the public can defuse the anger by the time the elections roll around.

The idea that the Supreme Court is a neutral arbiter of issues has always been a myth. It is a political body, its views influenced by the political views of its members and the political climate in which it operates. But by shielding it from immediate political pressures, it was hoped that it would take the edge off naked politically motivated actions.

But this court seems to be acting far more politically than the norm. I dislike imputing such crass political motives to Supreme Court decisions but this one is so surprising that I feel I have little choice.

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