Waiting on the Supremes
by digby
I have always assumed that it was very likely the conservative majority on the Supreme Court would take the easy way out and rule against the federal exchange subsidies by simply saying that the law is unclear so they are ruling for the plaintiffs but it's no biggie because the congress will "fix it." Those of us who don't live in Bizarroworld know this is ridiculous, but it's entirely possible that the conservative justices will pretend naivete and just say all the congress has to do it a little tweak and all will be ok, no harm no foul. And except for the dozens of votes to scale back or repeal Obamacare, that might even make sense. And, as Greg Sargent points out here, the fact that the Republicans have failed to produce their promised alternative for 50 months now can't possibly mean that they have no flipping idea how to "fix" it without making millions of people lose their health insurance.
On the other hand, many people think that John Roberts has a little more regard for the reputation of the court that to do something so patently absurd, which this interesting video from a few months back would seem to validate. He seems to be very concerned that the public not see the court as partisan and protests that it's just plain wrong. (I'm sorry to inform him that that ship sailed with Bush vs Gore -- and Roberts was among those GOP lawyers who descended on Florida to )
The problem is that he seems to think that the impression the public has of the court being partisan is strictly related to its advancing the political fortunes of the two parties and, even more importantly, that "partisanship" is purely a matter of political identity rather than ideology/philosophy. The fact is that when the justices consistently vote as ideological blocs as they do most of the time, they are reflecting the political reality of the country. Now whether the Supreme Court is supposed to reflect the political reality of the nation is another question, but the fact is that it does. It is, at the moment, as partisan as it gets. Denying that fact is pretty silly.
Furthermore, for all of his handwringing in that exchange about the confirmation process being teddibly teddibly partisan, he participated in it before he was a justice and for his own confirmation process. He knew very well what was happening and went right along with it.
Anyway, all that's beside the point. Jonathan Cohn at Huffington Post says this is the lay of the land judging by the oral arguments:
Justice Anthony Kennedy joined his liberal colleagues in asking pointed questions about federalism that could lead him to reject the lawsuit. Justice Samuel Alito floated the idea of a “stay” to delay the ruling’s impact, suggesting that he might be trying to assuage the anxieties of conservative justices wary of upending so many people’s health insurance. And Chief Justice Roberts said almost nothing -- which suggests, at the very least, that he was not so openly hostile to the government’s case as he was three years ago, when the court famously heard a challenge to the law’s individual mandate.
But there were also some bad omens for the law. Kennedy seemed to embrace a key argument that Obamacare critics had made about the amount of deference the court should give to federal agencies when so much money is in play. Alito’s proposal for a stay seemed like precisely the sort of political cover that Roberts might need to rule against the government. And Justice Antonin Scalia, whose past opinions made clear that justices should not read passages of laws in isolation, seemed fully prepared to do just that in order to rule against Obamacare.
The justices are meeting today to decide the case. We'll be able to read the opinions in June.