Your Supreme thug-justices at play: Looks like the new Republican Congress will get to write its own health-care plan (if any) after all

by Ken

One vaguely positive spin that might be put on the Supreme Court thug-justices' Friday announcement of their intention to gut the Affordable Act is that they chose to give us advance notice, rather than just springing it on us. (As the NYT's Adam Liptak reported, "The case is likely to be argued in February or March, and a decision will probably arrive in June, three years after the court ruled that Congress had acted constitutionally in enacting the law." And for the possible consequences of a wrong Supreme Court decision, see Igor Volsky's ThinkProgress post, "Here Is What Will Happen If the Supreme Court Strikes Down Obamacare's Subsidies.")

In fact, they gave us extra advance notice by announcing the decision to take on this appeal on Friday rather than saving the news for today, which, as SCOTUSblog's Lyle Denniston notes, "would be the usual mode at this time in the Court year."

The issue involved in this case should be familiar, because it was involved in another case that a panel of the D.C. Court of Appeals already blew the whistle on (see my December post "The full DC Circuit Court of Appeals pulls back from the brink of health-care loony-tune-itude") -- the appearance in the ACA, in the discussion of government subsidies to those who can't afford insurance coverage, of the phrase " an exchange established by the State," where "the State" obviously refers to "the state" as in the long-used sense of "the government" and quite obviously not, you know, one of the 50 united states. And from this they divine that the law applies only to the health-care exchanges established by the individual states, the intended mechanism for working toward universal coverage under the ACA.

To allow for the possibility that some states would fail to rise to their obligation, you'll recall, the law made provision for the establishment of federal exchanges. The notion that insurance applicants who qualify for government subsidies could be denied them because they live in one of those states that failed to live up to its obligations is, on its face, idiotic. And as anyone who has actually read the actual statute knows, there's no possibility that such a thing could have been intended. On a scale of one to a kajillion, the possibility that anyone with a working brain could by any imaginable mental gymnastics twist "the State," in the contested passage, into referring to, you know, one of the 50 united states, is zero.

What's more, as ThinkProgress's Ian Millhiser has explained at length (most recently today), in the case of arguably ambiguous statutory language, the courts, including the Supreme Court, have established criteria to apply, starting with reading the questionable text in context. By all established judicial precedent, even allowing that the language here is sloppy, there's no question that there was never any intent to create any possibility remotely like that envisioned by the lying-scumbag right-wing thug opportunists. Everyone involved all along the way has agreed about the obvious intent. In case this isn't persuasive, we now have congressional Democratic leaders, the people who shepherded the ACA to passage, prepared to swear on a stack of Bibles that no, the preposterous misreading never entered anyone's head.

As Ian M notes in his post today:

[E]ven the law’s opponents did not believe that Obamacare denies subsidies to people in the wrong states until King and its sister cases began to make their way through the courts. As Justices Scalia, Kennedy, Thomas and Alito explained in their joint dissent calling for the entire Affordable Care Act to be repealed, the subsidies are an essential element of the law’s core provisions. “Without the federal subsidies,” the four justices wrote, “individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges.” Indeed, without subsidies, “the exchanges would not operate as Congress intended and may not operate at all.”

Nevertheless, lying-scumbag right-wing legal thugs are attempting to perpetrate precisely this preposterous misreading, not because any of them believe it to be true, or have the slightest interest in "getting it right," but because, like any lying-scumbag right-wing thugs, they will do any damned thing they can dream up to get it their way -- you know, the Right way. In this case, they obviously hoped they could find enough lying-scumbag right-wing legal thugs embedded in the federal judiciary to pull this legal sleight-of-hand.

And Friday they hit paydirt. After all, if you're looking for lying-scumbag right-wing legal thugs embedded in the federal judiciary, where better to look than the U.S. Supreme Court? Our one and only High Court, after all, maintains a quasi-permanent cadre of anywhere from four to five lying-scumbag right-wing thug-justices -- the exact number usually depending on whether the case at hand happens to be of a sort where Justice "Slow Anthony" Kennedy likes to pretend to be a "moderate."

As the CAP Action War Room notes in its Progress Report post today, "The Latest Conservative Attempt To Sabotage Obamacare Just Got A Lot More Serious": "Make no mistake, the lawsuit is a strategic attempt at repeal by another name by ideological conservatives." (The War Room-ers go on to list "five key things about it": 1. The Affordable Care Act is working. 2. Nothing has changed as a result of the Supreme Court’s decision. 3. The law is clear. 4. This is an attempt at repeal by another name. 5. Repealing the tax credits would make insurance inaccessible for millions of Americans and could mean the difference between life and death.

Why is it reasonable to assume that Friday's announcement tells us that the fix is in? First, there was no reason why the Court had to step in at this point, in the sense that there are no contradictory circuit-court rulings that needed resolving. The Fourth Circuit has reached the obvious conclusion, and the full D.C. Circuit Court is almost surely in the process of doing the same -- the Court has in fact awkwardly sort of short-circuited its pending review after suspending its idiot right-wing three-judge panel's idiotic ruling.)

You'll recall that for the Court to take on a case requires four justices' voting to do so, and in this case it's assumed that at least the four justices who were already prepared to strike down the ACA are on board, even though the actual legal issue is quite different. That would make Chief Justice Roberts, rather than Justice "Slow Anthony," the swing guy, but for all we know he's already on board. After all, there has to be a reason why the Court acted so uncharacteristically Friday.

In his piece today, by the way, Ian M argues that there is "a third way," ("How Chief Justice Roberts Could Placate Conservatives And Save Obamacare") whereby this case could be decided according to utterly-true-to-conservative legal principles and still come up with the obviously correct answer. It's also true that, since the appellants argued that prompt consideration is required so dislocation can be minimized if in fact the ACA is seriously ripped apart, it's possible that this is why our esteemed Supreme Court justices are racing to get this case on the docket.

In case anyone cares to believe this. I'm more inclined to the view expressed by Daily Kos's Joan McCarter:

That the court didn't wait until Monday is unusual. That the court is not waiting for the D.C. Circuit to conclude its en banc review of the companion Halbig v. Burwell case is also unusual. That this is happening the same week that Republicans swept Congress, largely on the promise of Obamacare repeal, is downright frightening. If the subsidies on the federal exchange are ruled unconstitutional, the structure of the law will be perhaps fatally destabilized. Millions who are receiving subsidies will lose them and will be unable to afford insurance.

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