As the legislative terrain changed last Tuesday with significant GOP victories in both Congress and down-ballot races (the latter of which will probably have more consequence insofar as actual governing is concerned), perhaps so did the Supreme Court’s thoughts on whether to grant cert in King v. Burwell. What we do know is this: last Friday at least four justices voted to grant cert in the latest challenge to the Affordable Care Act, popularly known as Obamacare.
Conservatives are cautiously optimistic about the grant of cert. Jonathan Adler, a libertarian law professor, has been the intellectual driving force behind this statutory challenge to Obamacare. (Randy Barnett, another libertarian law professor, was the legal strategist behind NFIB v. Sebelius, the constitutional challenge to Obamacare that was narrowly rejected in 2012).
For their part, liberals are not so sanguine about the Court’s decision to hear the case. Indeed, there are already pieces in forums like the The New Republic talking the left off the edge. Jeffrey Rosen, something of the left’s legal public intellectual, has a piece in the same outlet that reads like it was written directly to and for Chief Justice Roberts to consider before making up his mind about King.*
Both sides are claiming that King is an easy case. Conservatives allege that the issue is simply a matter of textualism — the relevant provisions at issue mean what they say. Q.E.D. Liberals are also arguing that King is an easy case once one takes the ACA’s language, purpose and structure into account. (I’m not going to get into the details of the relevant statutory provisions, the IRS Rule, and their interaction here; SCOTUSblog is hosting a Symposium with both sides setting forth their arguments in detail). Each side has also pointed to their favored Supreme Court statutory interpretation opinions that putatively resolve the case in a manner consistent with their preferred result.
And the tea-leave reading and vote counting have already begun. Commentators have pointed to Justice Scalia’s longtime dissatisfaction with legislative history and his fealty for textualism as the best method of statutory interpretation. Indeed, Scalia wrote a book with legal-writing expert Bryan Garner espousing the benefits of textualism. (Judge Posner, with typical aplomb, castigated the book setting off a mostly one-sided (Scalia) war of words). Conservative Washington Post columnist Jennifer Rubin quotes John Yoo making this point: “[Justice Kennedy] was strongly in the dissent [sic] against Obamacare two years ago, and I cannot see him engaging in legal gymnastics to save a law he thinks is already unconstitutional.” The takeaway from the vote counters seems to be this: four justices, at least, granted cert because they are sympathetic to this challenge to Obamacare — which would effectively gut the statute — and that, once again, Chief Justice Roberts will cast the deciding vote on Obamacare.
Maybe, maybe not; it’s certainly intuitively pleasing. But if we step back from the partisans’ arguments, perhaps we can have a more informed analysis. A forthcoming paper by two political scientists — it is in the peer-review stage — shows that the Court is basically a majoritarian institution when it comes to invalidating federal statutes. That is, the Court is much more likely to invalidate an important federal statute — important as defined by David Mayhew (Mayhew 2005) — that does not have support from the sitting Congress. This effect is seen both at the cert stage and merits stage. At the merits stage, the Court is less likely to invalidate federal statutes that are supported by the pivot member of Congress.
Almost needless to say, the ACA is an important federal statute. And the findings above do not bode well for the continued vitality of the ACA. It is almost certainly not lost on the anti-ACA justices (Kennedy, Scalia, Thomas and Alito) that there will be no congressional override if they vote consistent with their policy preferences in King. And, in the face of four years of legislative gridlock, with two more to come, perhaps the Court feels emboldened to do as it pleases without worrying about congressional repercussions.
However, the ACA is not simply an important federal statute — it’s also the most important piece of social legislation in a generation (at least). We also know that the Solicitor General, the so-called “tenth justice,” has an impressive winning percentage in the Court (Bailey et al. 2005). Moreover, Keith Whittington has argued that the Roberts Court has been less activist than prior iterations (Whittington 2014; cf. Clayton and McMillan 2012). And according to sources inside the Court, Roberts switched sides in NFIB v. Sebelius, because he was worried about the Court’s institutional image should it strike down Obamacare on a partisan vote (Crawford 2012). Finally, while we know that Kennedy is the most activist member of the Court — using the rubric of votes to strike down state and federal legislation — it seems worth noting that Kennedy is not a textualist but employs an idiosyncratic jurisprudence (Collucci 2009). Yoo may be off the mark: it may be that the legal gymnastics Kennedy would have to jump through to strike down the ACA would be too much for the enigmatic justice.
In sum, while there is good reason to believe that the Roberts Court, unconstrained by the Republican Congress, may give the (perhaps dying) New Right regime a significant victory it was not able to achieve electorally, there are also ample non-quantifiable reasons to believe that the Court will refrain from taking that drastic step. Either way, the Court is going to resolve a significant political controversy.
* The pair have a history, so to speak.