It’s so tempting to do this math: four united liberal justices plus one skeptical Anthony Kennedy equals a victory again for Obamacare at the Supreme Court.
Don’t fall for it.
The Supreme Court heard oral arguments on Wednesday in the big Obamacare case, King v. Burwell, and some reports out of the courtroom suggest that the four liberal justices and Kennedy look ready to strike down the challenge, keeping billions in Obamacare subsidies flowing.
And while that could be how the Court ultimately decides, a fuller picture of the drama that unfolded in the Court today – from the full exchange between Kennedy and the challenger’s lawyer to the near-silence of Chief Justice John Roberts – combined with a clear-eyed read of the health care law’s legal history suggests that confidence from the law's backers is unwarranted.
So as tempting as it is to read the tea leaves, set them aside until June -- when the Court hands down its ruling.
Those making the case that the Court is about to swing 5-4 in favor of keeping Obamcare subsidies in place are pointing to an exchange between Kennedy -- who voted against the Obama administration in the law's last trip to the court -- and the challenger’s lawyer. Kennedy seemed skeptical of his argument, even asking if it would lead to an unconstitutional outcome. That's great news for the White House, right? Well, maybe. But read the full exchange:
Justice Kennedy: Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit … on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.
Mr. Carvin: Two points, Justice Kennedy. One is the government's never made that argument. Number two, I'd like to think—
Justice Kennedy: Sometimes we think of things the government doesn't.
Mr. Carvin: Well, I certainly hope you do in this case, but not … on this question. What … I'm trying to, quite seriously, Justice Kennedy, convey is if this was unconstitutional, then the Medicaid statute that this Court approved in NFIB would be unconstitutional.
Justice Scalia: Mr. Carvin, … what would the consequence of unconstitutionality be? Very often you have an ambiguous provision, could be interpreted one way or another way. If interpreting it one way is unconstitutional, you interpret it the other way.
Mr. Carvin: Correct.
Justice Scalia: But do we have any case which says that when there is a clear provision, if it is unconstitutional, we can rewrite it? … Is there any case we have that says that?
Mr Carvin: No, Your Honor. And that was really my point, Justice Kennedy. Think about the consequences … of the Medicaid deal as being coercive. Twenty-two states have said no to the Medicaid deal. That has created a bizarre anomaly in the law; that if people making less than the poverty line are not available to any Federal funds to help them with health insurance.
Justice Kennedy: I … fully understand that, but I think the Court and the counsel for both sides should confront the proposition that your argument raises a serious constitutional question. Now, I'm not sure that the government would agree with that, but it … is in the background of how we interpret this … statute.… It may well be that you're correct as to these words, and there's nothing we can do. I understand that.
Kennedy’s concern is that if the federal government really did set up a law where it only gave subsidies to states that built exchanges — how the challengers read the law — then 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.
In the legal system, there's a doctrine of "constitutional avoidance:" that the Supreme Court should avoid ruling on constitutional issues if they can resolve an issue based on statutory grounds. This is what made the law's supporters cheer: that Kennedy was raising a possible constitutional issue with the challengers' interpretation would give all the more reason not to use that reading of the law. Abbe Gluck, a law professor at Yale University who has written on the issues Kennedy writes, describes it this way:
The Court has a set of doctrines--the "federalism doctrines"-- that assume Congress doesn't intrude on the states without an "unmistakably clear statement." The focus on the fact that the challengers' argument would work a drastic intrusion without clear notice supports the argument that the statute doesn't meet the level of clarity required. That clear notice point is the focus of the brief I co-authored. In addition, the Court has another doctrine, the doctrine of constitutional avoidance, that says when there are two competing interpretations of a statute and one raises a constitutional question you pick the one that doesn't pose a constitutional problem. That's why the Justices were asking if the statute as challengers read it might be unconstitutionally coercive. If they think there is a potential constitutional issue there, the Court's doctrines tell it to pick the other interpretation. The idea again is that the Court assumes that Congress doesn't legislate unconstitutionally unless that's super clear in the statute. So it's all about the clarity of the text--which of course is the core of the case.
But for Gluck, the fact that Kennedy mentioned the constitutional issue doesn't say much about the outcome of the case. There's always the possibility that Kennedy was floating a trial balloon, testing out an argument that might disappear entirely in the next three months.
"Every court watcher knows it's really hard to ballpark a case from the oral arguments," she says. "I don't think it tells us what's going to happen with the decision. At most, it tells us federalism is a factor in play."
The silence of John Roberts
The other problem with predicting the outcome of the oral arguments is the performance from Chief Justice John Roberts. Roberts was a key vote in the last Obamacare case, joining the four liberals in a decision credited with saving the law. But on Wednesday, he barely uttered a word.
Which isn't to say he was completely still during the proceedings. He did, as I saw from my somewhat-obstructed view in the courtroom, tilt his black, leather-bound chair up-and-down a little bit. But that was most of the action on the part of the chief justice.
So where does he stand on these questions? Based on today: We have no idea.
So if Kennedy isn't a sure-thing swing vote, it's even less clear where Roberts stands. That leaves the case right back where we were before oral arguments began.
Lessons from the first Obamacare arguments
Oral arguments offer the best view into an otherwise secretive court. This is a body that refuses to broadcast its deliberations on television — or even announce when it will release specific decisions.
But even the view at oral arguments isn't that great. Quite literally, the press corps sits behind giant stone columns that obstruct our view — I was lucky to have a seat where I could catch a glimpse of six of the nine justices if I turned my head just right.
And, just as I could only see the justices partially, oral arguments only give us a partial view of the court's thinking. The more important deliberations will happen not just in obstructed view, but in complete secret.
This was driven home in 2012, the last time Obamacare appeared before the Court. The oral arguments, to put it mildly, did not appear to go well for the federal government. The New Yorker's Jeffrey Toobin infamously called it "a train wreck for the Obama administration. This law looks like it’s going to be struck down."
Buzzfeed edited together a painful, 39-second clip of Verilli's many stumbles. "Donald Verilli makes worst Supreme Court arguments of all-time," Mother Jones declared. The Washington Post awarded him the dubious award of "Worst week in Washington" for "hemming and hawing your way into the, uh, er, um, history books." A poll of former Supreme Court clerks suggested the mandate was doomed.
In the end, the Supreme Court did indeed uphold the requirement that nearly all Americans purchase insurance coverage — but you wouldn't have known it from the earlier coverage.
Meanwhile, the Supreme Court did something else that no one expected: found the health law's mandatory Medicaid expansion to be unconstitutional. Most observers had written the Medicaid expansion part of the arguments off as a sideshow to the actually contentious issue of the individual mandate.
So three months from now, perhaps the Kennedy argument will be the definitive issue in the case. Or maybe it won’t. Perhaps the Supreme Court will rule 6-3 for the government. Or maybe it will rule 6-3 for the plaintiffs. Just wait and see.