Brianne Gorod, an Appellate Counsel at the Constitutional Accountability Center, says that those who think (like I do) that the US Supreme Court agreeing to take on the federal subsidies issue is a sign that they are going to disallow it and thus seriously wound Obamacare are being too pessimistic (or too optimistic, if you happen to be an opponent of the health care law).
She clearly is much more of an authority on the law than I am and I hope she is right. Her essay outlines the background of the case and why she thinks that the government’s interpretation of the statute should be upheld and is worth reading.
She then addresses the issue that has made me suspicious of the court’s intent and motives and that is the unseemly rush to take on the case.
Given the strength of the arguments in support of the government’s position, it’s surprising the Supreme Court decided to hear King in the absence of a circuit split and with en banc review pending in the D.C. Circuit. If the Court had followed its ordinary practices, it would have waited to see what the D.C. Circuit (and possibly the Tenth Circuit, which has expedited briefing in another case raising the same issue) did before deciding to get involved. It’s disappointing that it didn’t do that here, in large part because its decision to hear the case now could create the appearance that the decision was motivated by politics, especially given that the law’s challengers have made no bones about the political nature of their suit and their belief that partisan judges are their key to victory. That’s exactly what Chief Justice John Roberts doesn’t want, as he made clear in a speech last month; as the Chief Justice explained, the Court isn’t composed of “Republicans or Democrats,” and he doesn’t want it to be seen as a “political entity” that engages in partisan politics.
Fortunately for the Chief Justice, the Court will have the opportunity to demonstrate that it follows the law, not politics, when it issues its decision in King next year. After all, regardless of whether the Court should have heard the case now, there can be no doubt about what it should do now that it’s hearing it. Non-partisan judges applying straightforward principles of statutory interpretation should easily conclude that the ACA not only allows, but requires, that tax credits and subsidies be available on federally facilitated exchanges. That alone should give confidence to anyone who’s worried about the fate of the Affordable Care Act. But for anyone who remains worried because they interpret the Court’s decision to hear the case as a sign of where the Justices are on the merits, there’s one more thing they should remember: it takes four votes to hear a case, but five to decide it. So it’s way too soon for ACA opponents to celebrate.
I would like to think that she is correct but I’m still gloomy. I think that this court cares less for legal consistency and more about getting whatever outcomes it wants.