The Supreme Court, it would seem, did not want you to see what it was up to on Wednesday.
The robed nine were hearing oral arguments in King v. Burwell, a legal effort by conservatives to dismantle Obamacare and probably the most politically charged case to appear before the high court since Bush v. Gore. But, as always, there was no video of the proceedings and, curiously, the court chose not to release same-day audio of the argument, as it did in Bush v. Gore and has done in other high-profile cases since then.
I went to the argument, as I have for the last decade, to attempt to paint for readers a verbal picture of the atmospherics in the room, such as Samuel Alito’s eye rolls, Sonia Sotomayor’s hectoring and Clarence Thomas’ states of repose. But this time, court staff placed me in the back corner, three feet from the door; blocking my view of the justices were two red-velvet curtains, a marble pillar, another marble pillar, and a closed brass gate carved with images of acorns, oak leaves, dolphins, helmets and plumes, animal heads and the Ten Commandments.
Ultimately, though, there will be no hiding what happened in that chamber Wednesday morning. Ninety minutes of lopsided argument in favor of the Obama administration’s defense cast significant doubt on what had been a plausible challenge to Obamacare’s legality. The conservative majority could still knock down the law, of course, but given the ambiguity exposed Wednesday, it would now be a breathtaking surprise for the justices to cause such massive upheaval – taking health care immediately from nearly 8 million and causing a death spiral for the rest of Obamacare – based on such a slender legal reed.
The four liberal justices furiously picked apart the arguments of Michael Carvin, who had also argued, unsuccessfully, in a 2012 challenge to the health care law. Alito and Antonin Scalia were not as aggressive as usual in their questioning of the Obama administration’s lawyer, and Chief Justice John Roberts was almost as silent as Thomas. Anthony Kennedy, perpetual swing vote, had some serious doubts about the argument against Obamacare.
Kennedy said that while “perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument,” along with a violation of federalism, because states would be coerced to embrace Obamacare exchanges or enter an insurance “death spiral,” he said.
“The government’s never made that argument,” Carvin replied.
“Sometimes we think of things the government doesn’t,” Kennedy informed him.
At issue: whether the language in the Affordable Care Act calling for each state to establish a health care exchange means that people are not eligible for subsidies in states where the federal government created the exchanges because the state refused to do so. Take away those subsidies, and Obamacare collapses.
One part of the law favors the critics’ interpretation, but other parts of the law, and the broader context of the law, contradict such an interpretation. Given this Talmudic dispute over the text, it’s almost inconceivable that the justices, supposed practitioners of judicial modesty, would consider that justification sufficient to tear apart the nation’s social fabric.
Opponents of the law went through great contortions to bring this case. They’re arguing against tax credits – and thus in favor of tax increases. They had trouble finding people who had sufficient injury to have standing in the case – and in Wednesday’s arguments it became apparent that only one of the four plaintiffs clearly qualified. More difficulty came when Carvin argued that states would still get the benefit of exchanges even without subsidies. Justice Elena Kagan pointed out that he argued the opposite in his last appearance.
Whichever legal argument the law’s opponents were relying on at the moment, it was secondary to the political argument against Obamacare. Scalia, in his attempt to justify the social upheaval that would come if the court jettisoned the law, asked the government’s top lawyer, Donald Verrilli: “You really think Congress is just going to sit there while all of these disastrous consequences ensue? … Congress adjusts, enacts a statute that takes care of the problem. It happens all the time.”
“This Congress, your honor?” Verrilli replied.
There was laughter in the courtroom.
In the unlikely event the Roberts court uses an ambiguous textual dispute to overturn the most significant social legislation of the era, there will be no place to hide from the national conflagration that follows.