Our clown Supreme Court takes on the bogus challenge to Obamacare -- and makes believe it's legitimate!

Justice "Slow Anthony" Kennedy: "At least," says Ian Millhiser, "one of the Court’s Republicans appears to have come to work wearing his judicial robe, and not his partisan hat."

by Ken

All in all, I'm inclined to go along with Greg Sargent's estimate of yesterday's Supreme Court oral arguments on King v. Burwell: "A hint of good news for Obamacare, but don’t get your hopes up too much." King v. Burwell, you'll recall, is the case that seeks to topple the Affordable Care Act on the ground of a single infelicitous wording, neither noticed nor known to exist by anyone on the planet until it was turned up by the cadre of right-wing lawyers gathered precisely to find any means they could to maim or cripple the law.

We've gone over this so many times that I hope it doesn't require extensive explanation. In a single buried reference the law refers to subsidies being available for insurance purchased through "an Exchange established by the State." Not "a" state or "one of the states," but "the State." In context it seems clear to anyone actually trying to figure out the intent of the law, as opposed to imposing an ideologically hostile view on it, that this reference to "the State" is to "the government."

The context here is the entire rest of the law, which nowhere else so much as hints at such a distinction between state- and federal-established insurance exchanges, not to mention the fact tthat until this hokum action was brought, on the advice of a gathering of right-wing legal hoodlums who made no secret of the fact that they took it as their mandate to find any way they possibly could to undo the ACA, I don't think a single person could be found anywhere who had any inkling that the law envisioned any such distinction. Certainly none of the right-wing Obamacare haters had any such inkling; you can easily assemble an encyclopedia of right-wing-buttwipe quotes that assumed the exact opposite.

Nevertheless, it seems clear from the comments and questions that, while the four "moderate" justices -- Stephen, Ruth, Sonia, and Elena -- aren't swallowing the right-wing bullshit, at least three of the talking far-right-wing ideologues are. By which I mean Justices Nino (I love Jeffrey Toobin's newyorker.com note that "Scalia looks ever more like a Fox News justice, who seems to get his talking points more from popular culture than from the law"), Sammy the Hammer, and Slow Anthony, and to their number we can surely add the traditionally non-talking Justice Clarence.

There was a crack about the law meaning just what it says, when the whole point is that, if you've got a brain and any knowledge of how the courts (and the Court) normally handle statutory ambiguities), the law doesn't mean what it's being misread to mean. Sometimes you wonder whether these hoodlums even read the briefs, or listen to the arguments.

Here's ThinkProgress's Ian Millhiser (in his post, "Obamacare Will Probably Survive Its Second Trip to the Supreme Court") on the hardest-core justices:

Justices Antonin Scalia and Samuel Alito were the only certain votes to strike down the credits, but their arguments at times painted them as political naifs. Alito, at one point, harped on the fact that only six states that refused to set up their own exchanges joined a brief urging the Court to uphold the tax credits — a fact that can be explained largely by partisan politics. Scalia asked: “won’t Congress fix” the problem if the Court breaks the law?

[Solicitor General Donald] Verrilli had a sharp response to that later question: “This Congress, your honor?”

THIS DOESN'T MEAN THAT ALL FOUR RIGHT-WING
JUSTICES ABOVE ARE IN SURE THUMBS-DOWN MODE

Among these four (yes, there's a missing fifth, but we'll come back to him in a moment), there was a significant surprise.

In the general specualtion about King v. Burwell as it has settled into repose in the hands of the High Court, we've heard a fair amount of talk about the legal and perhaps constitutional problem of a law that so far after the fact turns out to have carried a threat to the states: Set up your own exchanges or your people won't be eligible for subsidies.

Most of us have been thinking of this as (a) a pretty clear indication that such a threat was never included in the ACA and (b) an indication of the chaos the Court will be inviting if it swallows the bullshit, including the possible collapse of insurance markets in affected states. For "Slow Anthony" Kennedy, however, it raised a federal-state constitutional issue of the kind he's known to be sensitive to. Ian Millhiser explains:

[T]he Supreme Court’s first Obamacare decision forbids Congress from coercing states into taking certain actions. If states are forced to choose between setting up their own exchange or watching their individual insurance markets collapse, that could amount to unconstitutional coercion.

Justice Kennedy appeared to believe that it did. There’s “something very powerful” to this coercion argument, Kennedy said, adding that [right-wing bullshitters' shyster Michael] Carvin’s interpretation of the law raises a “serious constitutional problem.” Later in the argument, he indicated that the Court may have an obligation, under something known as the “constitutional avoidance doctrine,” to read the law in a way that does not raise constitutional doubts.

Still, as Ian notes, it's impossible to tell which way Slow Anthony will waddle, since he made it pretty clear that he does swallow the bullshit, and registered assorted doubts about arguments from the non-bullshitters.


WHICH LEAVES CHIEF JUSTICE SMIRKIN' JOHN

Yes, the chief justice was strangely silent, or perhaps not so strangely considering his awkward position as the right-wing thug-justice who saved Obamacare on its first trip through the High Court. He had hardly anything to say during the questioning, until the end, when he took up the suggestion that, if the matter is settled virtue of the considerable leeway allowed the executive branch in interpreting laws it has to enforce, as argued by Solicitor General Verilli, and asked whether "that would indicate that a subsequent Administration could change that interpretation." And the solicitor general agreed that possibly it could.

Jeffrey Toobin finds that question so significant that he titled his post "Did John Roberts Tip His Hand?" "The question suggests a route out of the case for Roberts," he suggests, "and the potential for a victory for the Obama Administration." (Though what kind of victory might still be argued.)

Roberts came of age as a young lawyer in the Reagan Administration, and there he developed a keen appreciation for the breadth of executive power under the Constitution. To limit the Obama Administration in this case would be to threaten the power of all Presidents, which Roberts may be loath to do. But he could vote to uphold Obama’s action in this case with a reminder that a new election is fast approaching, and Obamacare is sure to be a major point of contention between the parties. A decision in favor of Obama here could be a statement that a new President could undo the current President’s interpretation of Obamacare as soon as he (or she) took office in 2017. In other words, the future of Obamacare should be up to the voters, not the justices.

How exactly such a vote would affect the ruling is problematic. It's unlike that a majority of the Court would go along with its reasoning. But at the same time, to secure Smirkin' John's vote, on this theory, the ruling couldn't contain any substantive action that the chief isn't willing to sign onto. Which doesn't sound like the most secure endorsement for "subsidies for all."

As noted, Ian Millhiser's post is titled "Obamacare Will Probably Survive Its Second Trip to the Supreme Court." Here's how he sums up his impressions:

[Chief Justice] Roberts . . . famously crossed party lines to uphold the law in 2012. Though his vote is more uncertain, it would not be the least bit surprising if he did so again, this time with Kennedy providing him cover.

Obamacare is not out of the woods yet, and neither are the millions of people who will lose coverage or the thousands who will die if this case goes badly for the government. After Wednesday’s argument, however, those individuals have good reason to be optimistic. At least one of the Court’s Republicans appears to have come to work wearing his judicial robe, and not his partisan hat.

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