Supporters of the Affordable Care Act, starting with President Barack Obama, have generally taken the high road in response to Thursday’s decision by the Supreme Court to uphold the heart of the law. Graciousness in victory is, perhaps, its own reward. But it may also be appropriate, on the occasion of the 6–3 decision in King v. Burwell, to observe that this lawsuit was from its inception a shameful and cynical exercise, which illustrated the debasement of the contemporary conservative legal movement.
The facts of the case are by now well known. The core goal of the Affordable Care Act was to provide health insurance to as many Americans as possible. States were encouraged to set up exchanges, or marketplaces, where individuals could buy insurance, and there would be subsidies from the federal government for people who needed them. Before it passed, in 2010, the A.C.A. was subject to one of the longest and most contentious congressional debates in recent history. The law was attacked and analyzed from every conceivable perspective. The law may have been wise, or it may have been foolish, but it was universally understood.
Months after the law went into effect, a group of conservative lawyers discovered what was, at most, a drafting error in the law. A section of the law suggested that the subsidies should only go to individuals who bought insurance on exchanges “established by the State.” This discovery prompted the lawyers to argue that the subsidies would not be available to people who bought insurance on the federal exchange, which is the only exchange in thirty-four states. Notably—crucially—not one member of Congress who debated the law suggested that subsidies were to be denied to purchasers on the federal exchange. Still, these lawyers recruited plaintiffs and argued that more than six million people who bought insurance on the federal exchange should be denied their subsidies.
What principle was at stake in this lawsuit? The correct answer is none. This is a contrast to National Federation of Independent Business v. Sebelius, which was the first challenge to the A.C.A. In that case, the plaintiffs argued that Congress lacked the constitutional authority to pass the law in the first place. The case made a respectable (if ultimately unsuccessful) argument for a narrow conception of the government’s ability to regulate health care under the Constitution. King v. Burwell did not implicate the Constitution at all. It was, rather, based on a claim that the Obama Administration violated the A.C.A. itself by offering subsidies to purchasers on the federal exchange. The case was, in other words, a sophisticated game of gotcha, based on what was, again, essentially a typographical error. The case was only about trying to destroy the law by denying insurance to millions and setting in motion a death spiral of raised premiums, cancelled policies, and more rate hikes until the system collapsed. (The sheer callousness of the plaintiffs’ lawyers in King was something to behold. Millions tossed off health insurance? Hey, deal with it.)
For writing the opinion upholding the law, Chief Justice John G. Roberts, Jr., is being hailed (and denounced) as a latter-day Earl Warren—a Republican appointee who turns out to be a secret liberal. This is hardly accurate. Roberts is still the author of the Shelby County case, which gutted the Voting Rights Act, and an eager member of the court majority in Citizens United and all the other cases that undermined our system of regulating political campaigns. But as his restrained and cogent opinion in King demonstrated, he is not a partisan ideologue. Quoting liberally from opinions by Justice Antonin Scalia, Roberts made the commonsensical observation that a law must be interpreted as a whole, not by the analysis of a few stray words here and there. And the context of the full A.C.A. compelled the obvious conclusion that the subsidies were intended to go to individuals on both the federal as well as state exchanges. The law would otherwise make no sense. As Roberts wrote, “The statutory scheme compels us to reject [the plaintiffs’] interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.” Recognition of this obvious fact does not make Roberts a liberal; it makes him a judge.
In dissent, Scalia cranked up his increasingly tired act as the Court’s sound-bite generator. According to Scalia, the Court engaged in “interpretive jiggery-pokery,” spouted “pure applesauce,” and should prompt Obamacare to be renamed “SCOTUScare.” The problem with Scalia’s dissent is the problem with the lawsuit as a whole. It’s a transparent attempt to undermine the law by whatever means happen to be available rather than by any consistent jurisprudential principle. Back in the nineteen-sixties and seventies, judicial conservatives believed in restraint—in deference to the elected branches of government. That led them to oppose such decisions as Roe v. Wade, which overturned state laws banning abortion, and to support broad exercises of executive power. The King case shows that some conservatives have abandoned their old idea of deference to the executive branch and are simply filing lawsuits against the laws they don’t like—and coming up with whatever reasons they can to support them.
Obamacare remains controversial, and its future will be an important issue in the 2016 elections. That’s as it should be. If Republicans can win the Presidency and extend their control of Congress, they may well have the chance to undo the law, and they will have every right to do so. But today the Court said that the future of the law should be decided in that political process and not in response to litigation stunts like King v. Burwell.
