The Supreme Court followed up the landslide election on Tuesday with its own shocker: it announced that it will hear the Burwell case, which challenges the Obama administration’s extension of insurance subsidies in states that do not have health-care exchanges.
I think the chances are high that the administration will lose. Because:
1. The plain text of the statute denies subsidies to people who live in states without an exchange. This reading is not absurd, because it creates a powerful incentive for states to create an exchange in the first place. The obvious meaning of the text should only be discarded if it created absurd or ridiculous results. We shouldn’t discount the possibility that the Justices just want to do the right thing!
2. There was no split in the circuits — the lower courts actually seemed to accept the Obama administration’s misreading of its own law. If the Court agreed with the lower courts, or wasn’t sure about it, they could have just allowed the issue to further percolate (as the Justices themselves will often say when they pass on the opportunity to take a case). The grant of certiorari (which takes four Justices) only makes sense if a majority wants to overrule the lower courts quickly.
3. I assume Chief Justice Roberts is with the original four dissenters from Sebelius two years ago in opposing the administration. This gives him the chance to atone for his error in upholding Obamacare as a valid use of the taxing clause in that case. His decision in Sebelius did great violence to the Constitution’s protections for federalism — it will be the mission of his Chief Justiceship to repair the damage. Plus, the insincere misreading of the statute will grate especially hard on Roberts’s professionalism — he seems to take seriously getting the right lawyerly answer to technical statutory questions. Justice Kennedy, who is usually the swing vote, was strongly in the dissent against Obamacare two years ago, and I cannot see him engaging in legal gymnastics to save a law he thinks is already unconstitutional.
4. The Court will be acting in agreement with, rather than against, majority wishes. The last election gives the court political cover to cut back on Obamacare. Given the election results, a majority of Americans support repeal or radical restructuring of Obamacare. If the Court rules against Obama here, it will be acting with the support of a majority of Congress. What judge can resist the chance to reach the right legal result, fix mistakes from the past, and act with popular support? It’s a Supreme Court trifecta.