Corporate Accountability

Is Supreme Court’s chief justice ready to take down ObamaCare?

By Peter Sullivan

U.S. Supreme Court Chief Justice John Roberts faced a conservative backlash after casting a decisive vote to save ObamaCare in 2012. 


Now he must weigh in on the law once again. 


The case of King v. Burwell, set for arguments before the Court on Wednesday, threatens to gut the law by invalidating subsidies to help millions of people buy insurance in the roughly three-dozen states relying on the federally run marketplace. 


While, legally, it is far different from the 2012 case — a question of interpreting the text of the law rather than ruling on its constitutionality — Roberts faces the same kind of scrutiny. 


After Roberts’s surprise ruling in a 5-4 decision to uphold the law the last time, conservatives denounced him as a sellout. Conservative host Glenn Beck printed T-shirts with Roberts’s picture above the word “COWARD.” Louisiana Gov. Bobby Jindal, now a possible Republican presidential candidate, said Roberts was “just playing to the editorial pages of The Washington Post and The New York Times.”


CBS reported after the decision, citing two anonymous sources, that Roberts had switched his vote to uphold the law and withstood a fierce lobbying campaign from the conservative wing of the Court.


Now, conservatives are putting pressure on Roberts again. John Yoo, who was a prominent lawyer in President George W. Bush’s Justice Department, wrote in National Review that the new case gives Roberts “the chance to atone for his error in upholding Obamacare.”


But it remains unclear which way Roberts will rule. The challengers argue that the plain English of a phrase in the law referring to marketplaces “established by the state” clearly prohibits subsidies from being disbursed on federally run exchanges not established by states. 


The administration argues that is a nonsensical reading of one phrase that is contradicted by the rest of the law, which makes no mention of restricting subsidies only to some states. 


Supporters of upholding the subsidies also have their eyes on Roberts. “The chief is clearly the prime person to look at,” said Simon Lazarus, senior counsel at the Constitutional Accountability Center. 


The legal world is buzzing about a decision the Supreme Court handed down on Wednesday, thinking it might provide a window into how Roberts will rule in King. 


In the case, Yates v. United States, which centers on a fisherman accused of destroying evidence that he violated restrictions, Roberts joined a majority opinion by Justice Ruth Bader Ginsburg, a liberal, holding that a fish is not a “tangible object” under a certain law. While a fish is literally a “tangible object,” Ginsburg, along with Roberts, pointed to Congress’s intent in passing the law, which was to crack down on financial fraud, and said that fish have nothing to do with that. 


“When interpreting statutory text, Roberts isn’t as fixated on isolated words and phrases as some Justices sometimes are,” Laurence Tribe, a Harvard law professor who taught Roberts as a student, wrote in an email. “He pays close attention to the context in which phrases appear and to a statute’s overall purpose. That became especially clear when he joined Justice Ginsburg’s plurality opinion on Feb. 25 holding that fish didn’t count as ‘tangible objects.’ ”


But Jonathan Adler, a law professor at Case Western Reserve University, and an architect of the challenge to the subsidies, said “no one believes” that context is not important. 


He focuses instead on the justices’ history of saying that “you can’t rewrite clear terms” in a law. 


A window into Roberts’s thinking that could give hope to the challengers of the subsidies, on the other hand, is the chief justice’s opinion in the 2013 case striking down part of the Voting Rights Act. There, he reasoned that Congress could simply redo the outdated formula for applying the law that he was striking down, without factoring in congressional gridlock. 


That shows Roberts is willing to adopt “pretend naïveté about the political process,” and eases the way for him to strike down provisions by simply giving the problem back to Congress to fix, said Richard Hasen, a law professor at the University of California, Irvine. 


Justices Ginsburg, Breyer, Sotomayor and Kagan, who make up the liberal wing of the Court, are widely expected to vote to uphold the subsidies. Justices Alito, Thomas and Scalia are seen as more likely to vote to strike them down. Justice Kennedy, often the swing vote, could be in the air along with Roberts. 


“Justice Kennedy and the chief tend to be more in the middle,” said Chris Walker, an Ohio State law professor and former clerk for Kennedy. 


“They tend to be lighter versions of textualism,” he said, meaning that they are more likely to also consider factors like the purpose of the law as a whole. 


A broader potential factor in Roberts’s decision is his interest in the legitimacy of the court in the eyes of the public and his worry about appearing too partisan. 


“We are not Republicans or Democrats,” Roberts said in a speech in September. “I’m worried about people having that perception.”