Friedman & Lithwick on King v. Burwell: Stay Calm and Stay Calm?

Barry Friedman and Dahlia Lithwick have a post in Slate entitled “Obamacare Is Doomed! Everybody Panic!” Here.

I regularly read, enjoy, and respect SLS grad Dahlia’s work and I hope she and Professor Friedman (of NYU) are right.  And they are clearly right that panic is a not good reaction.  Panic is the worst emotion: never useful and never even enjoyable. I recommend in this case concern and righteous anger.

Cases do get taken without circuit splits, sometimes in situations of overwhelming importance, sometimes when the Court thinks a lower court decision is just blatantly wrong.  These subsidies don’t seem, to me at least, to fit the first category. I worry, a lot, that at least four and maybe five justices think they fit the second.

Friedman and Lithwick argue that this is a case that is important to decide quickly because of the disruption a negative ruling would cause.  But why, exactly, would finding out in June 2015 that you won’t have health insurance be less disruptive than finding out in, say, February 2016?

The precedent they cite for the Court taking a case without a circuit split and upholding the constitutionality of the statute is not encouraging. In Bond v. U.S. the Court held the Act was constitutional but reversed its application in that case:  i.e., held the lower court was wrong.  There’s no constitutional issue in King; why should I find this precedent encouraging?

They further point out that people may be wrong in their guess about Chief Justice Roberts.  That’s true, but in this case those “people” would probably include Justices Scalia, Kennedy, Thomas, and Alito.  My guess is that they’ve got better information than the rest of us.  And, frankly, if the Chief Justice wanted to get rid of Obamacare, doing it now, as a statutory interpretation, just after a sweeping GOP victory, probably makes it less visible and less politically harmful to the Court than the 2012 case would have.

That justices are lawyers, too, and will almost always try to reach a legally justifiable result is also a good point, and one I’ve made, from time to time.  But they aren’t just lawyers, not in intensely political cases. And although I think the case for the government’s reading is convincing, I don’t think it is “slam-dunk convincing”. There is wiggle room, I think, for a justice who wants to go the other way.  And, when the political stakes are high, even justices I almost always respect may go a legally very weak way.  (Bush v. Gore being exhibit 1.)

I do think it is not entirely clear that stripping people of health coverage is good politics for the Republicans in the long run but I also think those justices just don’t care.  They just want it gone.  And I’d rather have it in place than hope that its demise will somehow prompt a backlash against the GOP that will lead to the second coming of a Democratic ability to pass something vaguely close to universal health coverage.  So far, they’ve been able to do that once in 66 years of trying.  Want to roll the dice that that option will be open again soon?  I don’t.

And, frankly, I don’t think their “federalism” respecting argument makes sense. The idea is that some federalism-respecting justices (you know who) will find it hard to vote against the status quo, where the fact that the federal government will provide exchanges whether or not a state does takes the pressure off states to set up their own exchanges. But isn’t the stronger “federalism” respecting position one in which states that don’t want Obamacare are able to avoid it, or at least avoid any subsidies for it.

Overall, though, my main reaction had nothing to do with any of this.  It is anger.  I am angry that at least four justices of the Supreme Court granted cert in a highly political case where they had to know it would be read, as it largely has been read, as a naked political move.  My conclusion: they don’t care. They’ve got the votes, their side has political momentum, and they don’t care what Democrats – or people who are both paying attention and want to believe in a non-partisan Supreme Court – think.

Personally, I think it stinks. And though I’m not panicking, I am not happy. And you shouldn’t be either.