Veteran observers of the United States Supreme Court regularly and wisely advise not to make too much out of the questions asked by the justices during oral argument as a predictor of ultimate outcome. Having said that, the first reaction of those who follow these oral arguments (often including some of those veteran observers) invariably is an attempt to weigh the likely judicial mindsets of the justices by the questions asked at oral argument (other than for Justice Clarence Thomas, who traditionally does not ask questions at oral arguments). Why should today be any different?
The Court heard oral argument on Wednesday, March 4 in King v. Burwell, a case that goes to the core functionality of the Affordable Care Act (the “ACA”) by raising the issue whether four words in the body of the ACA (for the curious, those four words as “established by the State”) mean that subsidies payable by the federal government to defray the cost of health care coverage are only available to residents in states that have established their own health care exchanges. The plaintiffs in the King v. Burwell case argue that subsidies should not be available to residents in states that have not adopted health care exchanges. Under the ACA, states are not required to establish their own health care exchanges. If a state chooses not to do so, the federal government is required to assume that responsibility. Currently, 37 states have opted not to create their own state exchanges (thus relegating residents in those states to the federally-run health care exchange). While this case does not deal with weighty issues of constitutional law, the stakes nonetheless are huge. Most studies indicate that millions of Americans who currently have health care coverage (some studies peg that number as high as 9 million people) would lose that coverage if they lost entitlement to the subsidies because they could not afford to pay for coverage on their own. The resulting loss of such a large number of customers would be expected to cause great havoc in the insurance market.
Initial reports from the oral argument depict a Court split along by-now predictable ideological lines. Based on questions asked, the clear majority of courtroom observers have concluded that the co-called liberal wing of the Court (including Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) almost certainly will reject the claims of the plaintiffs. Justices Antonin Scalia and Samuel Alito appeared skeptical of the position of the federal government supporting the provision of subsidies, even though some observers felt the tenor of their probing was less aggressive than might have been expected. Justice Thomas once again was silent.
Several of the justices seemed concerned about whether the more restrictive reading of the breadth of the ACA favored by the plaintiffs would in fact constitute unlawful federal coercion of state governments (i.e., that it might in fact be unduly coercive to require the states to establish their own exchanges in order to preserve for their residents a right to obtain subsidies to help pay for the cost of health care coverage). Justice Anthony Kennedy, thought as always to be an important swing vote in this case, seemed to be particularly concerned. Already, some observers are asking whether Kennedy has in effect provided a preview of his thinking about this case by his questions on the coercion issue (and his comments, at least temporarily, may allow many in the Obama administration to sleep better at night). Chief Justice John Roberts, another potential swing vote in this case, said too little at the oral argument to be able to discern his position on the case.
In one of the more optimistic moments during the oral argument, Justice Scalia stated a belief that Congress certainly would intervene if major negative consequences would follow from an opinion of the Court invalidating the extension of subsidies in states that do not establish their own exchanges. While such respect for congressional diligence may be admirable, a more cynical but perhaps more realistic view is that is difficult to see how a Congress seemingly so dedicated to the repeal of the ACA would step in to restore one of the main pillars of that law or how President Obama might be able to cajole them to do so. One imagines that stranger things have happened, but that eventuality would have to be considered unexpected–at least by this observer.
There now seems little else to be done but to wait for the Court’s decision to be issued (friendly wagering aside). As often is the case with many cases of this magnitude, it seems reasonable to assume the Court’s opinion in this case will be issued at the end of the Court’s term in June, 2015. The waiting game has begun.