Because the stakes are so enormous, the pending conservative Supreme Court challenge to Affordable Care Act subsidies in three dozen states generates a lot of handwringing and ideological conflict. But more recently it has also given rise to an unexpected consensus.
Though the judiciary is supposed to sequester its legal and constitutional opinions from political and substantive concerns, liberals and conservatives both agree that the consequences of a ruling for the challengers in King v. Burwell will weigh heavily on at least one conservative: Chief Justice John Roberts. The law’s supporters are thus hard at work nailing down just how many beneficiaries will lose their coverage if the court destroys the insurance markets in these states, while conservatives are trying to downplay, and perhaps reduce, the likelihood of major disruptions.
“Highlighting the potential for such a SCOTUS decision to result in widespread disruptions and dire consequences—both for millions who might lose coverage and for the insurance and health care industry in these states—may figure heavily in the government’s strategy for winning the case,” liberal writer Greg Sargent explained at the Washington Post.
Randy Barnett, a libertarian law professor and vehement ACA opponent is encouraging Republicans in Congress to get to work on an alternative—not for the sake of laying a Republican health care agenda before voters in 2016 or because any consensus exists within the GOP, but to put John Roberts’ mind at ease.
“To make a favorable ruling in King more likely, the legislative wheels must be visibly in motion by the time of oral arguments in March,” he pleaded in a USA Today op-ed.
At least some lawmakers buy this argument. Richard Burr, a Republican senator from North Carolina, and coauthor of a health reform white paper, says “maybe the court will feel more confident making a decision if in fact there is a legislation solution [to the subsidy problem] that is realistic.”
From opposing vantage points, conservatives and liberals have identified the same obstacle to victory, and it has nothing to do with the legal merits of the case. It has to do with the mess conservatives are asking the court to create. That’s because, deep down, the combatants both grasp two cardinal facts: that the merits of this challenge are extremely weak, and that the Supreme Court might buy it anyhow.
Normally, senators and legal scholars would agree that Supreme Court justices should insulate themselves from appeals to their basic decency. Instead, they’re the ones propounding the appeals. Libertarian Peter Suderman takes a different tack. In a piece that’s silent about the right’s equal but opposite efforts to sway the justices, he argues that the Supreme Court should ignore the potential for disruption when deciding the King case, because “it’s clear that the administration’s implementation is illegal.”
To support such a strong claim, Suderman omits the fact that a significant majority of the federal judges that have already considered the challenge have sided with the government, and neglects to cite the many ACA provisions that, at the very least, render the statute ambiguous. His article is a fitting representation of the conservative media’s more general tendency to sideline good news about Obamacare and hype the bad. But in this case it serves a purpose larger than feeding public misgivings about the law. When it comes to King, conservatives can’t confess to any doubt, because if there’s any doubt, then the government wins.
Of course, if the challengers’ case were as airtight as they all claim, they wouldn’t need to engage in elaborate efforts to control the narrative surrounding the consequences of a ruling on their behalf. They wouldn’t need to downplay the potential disruptions, or chastise liberals for playing them up. They would just win. The problem they face isn’t that conservative justices are squishes who will ignore the law when enforcing it would be too painful, and hand liberals a victory in the process. The problem is that their case is garbage.
If you believe that the King challenge is garbage—clever garbage, perhaps, but garbage nonetheless—and you think John Roberts is aware enough to smell the garbage, then the consequences suddenly become very relevant. Justices shouldn’t vouchsafe bad arguments under any circumstances, but they’re more likely to play along if the repercussions are likely to be modest.
The Chinese wall separating political and legal arguments is breaking down in King, because the challenge itself is such a farce. Roberts will understand that it's a farce. And while he may be willing to vouchsafe a farce in a low-consequence environment, he will probably feel more constrained if he understands just how big a mess he'd be making. Consequences are uniquely important in King, because King is an entirely results-driven case disguised as a principled stand for executive branch restraint.
Nearly five years after Obama signed the Affordable Care Act into law, the logic impelling Republicans to reach consensus on an alternative has become immeasurably stronger; but even the allure of a Supreme Court decision to gut the law probably isn’t enough to force Republicans into consensus, let alone on a bill that President Obama would sign. And if that’s the case, the Court would be making an enormous mess indeed.