Anthony Kennedy raised new questions about constitutionality — questions that neither the government nor the challengers brought up in their briefs. Ruth Bader Ginsburg questioned whether the plaintiffs in King v. Burwell, a case challenging the legality of Obamacare's insurance subsidies, even had standing to challenge the Affordable Care Act. Chief Justice John Roberts, seen as a swing vote in the case, kept his cards close to the chest and barely participated in the oral arguments. And Samuel Alito threw a total curve ball, describing an idea for subsidies no one saw coming.
Take it all together, and the takeaway from the day is similar to where the law was in 2012: at the hands of a court that could go in a variety of directions. The liberal justices appeared ready to side with the White House. But swing votes in Kennedy and Roberts were less clear. And while last time Obamacare was in front of the court most observers ended up being wrong about which way the court seemed likely to go, this time it's tougher to even take a real guess.
Here are the biggest surprises at the court Wednesday.
Kennedy raised the idea that there might be a constitutional issue at play in King
Anthony Kennedy, seen as a key swing vote in the case, said he was skeptical of the challengers for a surprising reason: that their reading of the health care law would "raise serious constitutional questions."
Kennedy's concern was this: if the federal government really did set up a scheme that only gave subsidies to states that built their own exchanges — which is the challengers' reading of the law — it could be, as SCOTUSblog put it, an "unconstitutional form of federal coercion." Because the subsidies are so integral to making the exchanges work, the government would essentially be forcing states to build marketplaces.
"The States are being told either create your own Exchange, or we'll send your
insurance market into a death spiral," Kennedy said of the challengers' argument.
Kennedy's concern is that, if the court rules in the challengers' favor, it would essentially be endorsing the federal government's unconstitutional coercion of the states. His question made him seem skeptical of the challengers' reading of the law — and the possible precedent it could set for future federal regulation if the court sided with this interpretation.
"Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state," SCOTUSBog's Eric Citron writes.
Justice Ginsburg questioned standing
The most surprising thing at the Supreme Court was how the justices veered away from the arguments filed in the challengers' and petitioners' briefs.
One big way this happened had to do with the plaintiffs' standing — whether the people challenging the Affordable Care Act were actually being harmed by the law. Justice Ruth Bader Ginsburg brought this up as her very first question, before the plaintiffs' lawyer Michael Carvin got more than a full sentence in. This is not an issue that the government raised in its briefs, so it was a surprise to see this discussion come up. Near the end of arguments, Carvin assured the court that his plaintiffs (or at least one of them) did have standing to challenge the law.
Extending tax subsidies until the end of the year?
Justice Samuel Alito raised the possibility that, in the event that the Supreme Court did rule against the health care law, it could possibly stay its ruling until the end of the year. This could mean that people who signed up for coverage in 2015 would not lose their subsidies in the middle of the year. This is the first time a justice has raised that idea and, while Alito doesn't speak for the court, his remarks show that concept to be at least circulating among them.