Which justice switched on Obamacare?

One interesting point of the Obamacare verdict was its 6-3 nature. Recall that the opponents of Obamacare had lost their case in all the Appeals Courts where it had been heard. They won 2-1 only in the DC Circuit Court of Appeals and then that court decided that the case would be heard en banc, i.e., reheard by the entire bench. It was predicted that the full court would reverse the decision by the three-judge panel, thus making the Appeals Courts results unanimous again.

But after the hearings were scheduled for December 17, 2014 but before they could hear the case, the US Supreme Court surprised everyone by saying in November that they would take the case, making the en banc hearings moot and it was never held.

Recall that takes at least four votes for the Supreme Court to hear a case and there was strong speculation that at least four judges wanted to overturn Obamacare and that they quickly voted to hear the case while there was still a split in the lower courts, the most common reason for them to hear a case. Thus it seemed clear that there were at least four votes to uphold the claims of the opponents of Obamacare. Usually the four justices who agree to take a case feel somewhat confident that they can get at least one other vote on their side. So clearly Scalia, Alito, and Thomas must have felt that Roberts and Kennedy would vote along with them.

This was why the final 6-3 margin of the split vote was a surprise because it suggests that at least one justice switched his or her vote and the suspicion is that it was either Roberts and/or Kennedy. While Kennedy had voted against Obamacare in 2013 and thus seems a more likely candidate, an argument can be made that Roberts switched, though Kennedy might have done so also.

The reason for my suspecting that Roberts switched is partly based on an analysis by Einer Elhauge who takes a stab at understanding the thinking of the conservatives on the court. He says that while Roberts is as conservative as Scalia, Alito, and Thomas, there is a slight distinction between them that can be described as one between ‘economics conservatives’ (Roberts and Kennedy) and ‘formalist conservatives’ (Scalia, Thomas, and Alito).

Not surprisingly for someone who was a prominent antitrust advocate in cases like Microsoft, Roberts has a sophisticated understanding of economics and his conservativism is more of the law-and-economics school variety. At least when it comes to economic regulation, he tries to read statutes to make economic sense rather than economic nonsense. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito are pure formalists, happy to lead us all into economic disaster if they think that is the linguistically most accurate statutory reading. We saw the same divide in the past Obamacare case, in which Roberts recognized the lack of economic difference between a tax and a penalty and interpreted coercive threats in a way consistent with contract law and economics, as I have shown elsewhere. We also saw the same divide in recent cases like North Carolina Board of Dental Examiners v. Federal Trade Commission, in which Roberts and Justice Kennedy recognized that an entity controlled by financially interested market participants was functionally a private actor, whereas Scalia, Thomas, and Alito were happy to deem them public actors as long as the state labeled them a state agency. If you want to divide the conservative Justices, at least when it comes to economic regulation, the best strategy is to pay attention to this fault line between the economic and formalist conservatives.

While Obamacare does help many people get insurance and thus was supported by progressives despite its many deficiencies, it also is a windfall for the health care industry because the government was now subsiding many more people who could pay for their services, like the insurance companies, hospitals, doctors, medical service providers. Obamacare is a very business-friendly health care program, based on the Massachusetts model that was implemented when Mitt Romney was governor of the state. It is exactly the kind of plan that Republicans would have backed if their strategy had not been to oppose everything that might signal a victory for Obama.

In the Obamacare case, Roberts was clearly more concerned by the fact that ruling against it would result in a death spiral for the health insurance market, more so than the fact that it would leave millions of people without affordable health insurance. So this distinction by Elhauge is consistent with the view that Roberts was swayed by the economics arguments and the impact on business.

It could also be that Roberts was always aware of the negative business aspect of rejecting Obamacare and thus always inclined to support it and that Kennedy was the fourth vote but that Roberts managed to sway Kennedy to go along with him.


  1. Michael I says

    Two other possibilities:

    1) At least one of the justices who voted to hear the appeal wanted to make a definitive statement that the Court was NOT going to overturn or otherwise cripple the ACA.

    (Presumably this would be Roberts and/or Kennedy as either of them could be confident that their vote would give majority support to a verdict in favor of ACA.)

    2) Apparently sometimes the Court will agree as a courtesy to hear a case that some justices strongly want to hear, even if there wouldn’t ordinarily be four votes to support hearing the case.

Leave a Reply

Your email address will not be published. Required fields are marked *