On Wednesday, the justices will hear oral arguments in King v. Burwell. They will consider whether to take health care away from millions of Americans. They will consider whether to cast much of the health care sector into chaos, potentially destabilizing the individual insurance market in many states. They will consider whether to undercut a program that provides health care to children, potentially leaving 5 million of these children uninsured. And they will consider whether thousands of wives get to hold their husbands again and whether thousands of fathers get to kiss their daughters again. By one estimate, nearly 10,000 Americans will die every year if the justices vote against Obamacare in King.
King, in the words of the New York Times’ Linda Greenhouse, enlists the Supreme Court “into the front lines of a partisan war.” It rests on the notion that six words of a nearly 1,000 page law can be read out of context to destroy one of the law’s central functions. And, yet, the King plaintiffs could prevail. The biggest predictor of how a judge will vote in an Obamacare case has been the judge’s political party, and five of the nine justices are Republicans.
Based on our analysis of the law, the justices’ past statements, and their ability to resist partisan pressure in the past, here is a breakdown of how each justice is likely to vote, ranked from the most likely to uphold the law to the most likely to take health care away from millions:
Justices Ginsburg, Breyer, Sotomayor and Kagan
As recently as last week, Justice Ruth Bader Ginsburg penned an opinion joined by Chief Justice John Roberts plus all of her fellow liberal justices except for one, which rejected the idea that a few words of a law may be read out of context by judges attempting to divine those words’ meaning. “Whether a statutory term is unambiguous,” Ginsburg wrote, “does not turn solely on dictionary definitions of its component words.” Rather, a court must look to “the specific context in which that language is used, and the broader context of the statute as a whole.’” Though Justice Elena Kagan was the sole Democratic appointee not to join Ginsburg’s opinion, she nevertheless snuck a pointed statement into her dissent that rejects the King plaintiffs’ acontextual method of reading the law. “I agree with the plurality (really, who does not?) that context matters in interpreting statutes,” Kagan wrote, adding that “[w]e do not ‘construe the meaning of statutory terms in a vacuum.’ Rather, we interpret particular words ‘in their context and with a view to their place in the overall statutory scheme.’”
It would simply be extraordinary if the Court’s Democrats, two of whom were appointed by President Obama, voted to gut Obamacare based on the proposition that the words of a law can be read outside of their context. There is an off chance, however, that one or more of the Court’s more liberal members could embrace the plaintiffs’ reading of Obamacare if that helps them build a majority around a different legal theory that will also save the law.
The plaintiffs argue that states that set up their own health exchange where individuals can buy subsidized health insurance — rather than permitting the federal government to do so for them — are the only states where residents may receive their share of hundreds of billions of dollars’ worth of tax credits enabling them to afford insurance. Even if the plaintiffs are correct that the law should be read this way, however, several amicus briefs make a strong argument that imposing such a condition upon the states violates states rights and would therefore be unconstitutional.
In NFIB v. Sebelius, the last lawsuit seeking to destroy Obamacare, Justices Stephen Breyer and Kagan joined the Court’s Republicans in making the law’s Medicaid expansion optional. Though those of us who were not a party to the Court’s private communications can only speculate as to whether Breyer and Kagan did so out of a sincere belief or because they agreed to lend their name to this controversial decision in order to help convince Chief Justice John Roberts to save the remainder of the law, it is worth noting that Kagan, in particular, seemed very unlikely to label the original Medicaid expansion unconstitutional during oral arguments. So, while it is unlikely that any of the Court’s Democrats will actually vote to strike down a major part of Obamacare in King, it is possible that one or more of them will throw a bone to conservatives if that helps convince one of the Court’s Republicans to save the law.
Odds the Democratic appointees — Ginsburg, Breyer, Sotomayor and Kagan — will vote to uphold Obamacare: over 99 percent.
Chief Justice John Roberts
Roberts proved fickle in the first Supreme Court case seeking to kill the Affordable Care Act. Although Roberts initially voted to strike down the law’s individual mandate, he later flipped his vote to uphold the bulk of the law, breaking with his fellow Republicans in the process. CBS News’s Jan Crawford, a veteran Supreme Court reporter who is well-connected on the Republican side of the Court, later suggested that Roberts may have flipped his vote because he is “sensitive to how the court is perceived by the public.” Though Crawford caveats her reporting by noting that “[i]t is not known why Roberts changed his view on the mandate and decided to uphold the law,” she notes that “countless news articles in May warning of damage to the court” may have influenced the chief justice’s thinking.
Should Roberts turn around and gut Obamacare in King, he would only confirm many people’s fears that the Supreme Court has become the judicial wing of the Republican Party. As the Washington Post’s Robert Barnes wrote on Friday, King presents Roberts with a dilemma: “Can Roberts’s portrayal of the Supreme Court as above politics survive another round with the most partisan issue of the decade?”
Given the weak legal arguments advanced by the plaintiffs, and the minimal likelihood that any of the Court’s Democrats would join a decision gutting the law, numerous commentators have concluded that the answer to this question is “no” if the justices decide to strike down the tax credits. As Washington & Lee law professor Tim Jost said in a Center for American Progress-produced video, “a 5-to-4 decision invalidating the premium tax credits would seriously call into question the legitimacy of the Court.” He added that such a decision would “pretty transparently” happen “for political reasons.”
Competing against Roberts’ desire to preserve the legitimacy of his Court is the fact that he remains a conservative Republican, and he’s hardly been shy about advancing a very conservative agenda in areas such as voting rights and campaign finance. The chief’s conservative instincts were on full display in his initial vote on Obamacare three years ago. He overcame those instincts that time, but it is far from clear that he will be able to do so again.
Odds Chief Justice Roberts votes to uphold Obamacare: 50 percent.
Justice Anthony Kennedy
In describing Kennedy’s reaction to Roberts’ vote in NFIB, one source told Jan Crawford that Kennedy was “relentless” in trying to bring Roberts back in line with his fellow Republicans. Four of the Court’s Republicans signed a dissent calling for the entirety of the Affordable Care Act to be repealed, and Kennedy read that opinion from the bench on the same day that Roberts read the majority opinion saving most of the law (reading a dissent from the bench is one method that members of the Court use to convey extraordinary displeasure with a decision). Given Kennedy’s anger that the Court did not repeal the law three years ago, he is now an unlikely vote in its favor.
That said, there are two mitigating factors that could sway Justice Kennedy. The first is the argument that the King plaintiffs’ reading of the law violates states rights. Kennedy is a strong advocate for federalism; he believes that states’ rights “protect the liberty of the individual from arbitrary power.” If he can set aside his disdain for Obamacare in King, he could potentially score a major victory for a cause that he has long championed.
The other factor is that Kennedy has, at times, been willing to break from the Court’s conservatives when he believes that the welfare of children is at stake. As an amicus brief explains, the King plaintiffs’ argument does not simply threaten people insured through the exchanges, it also threatens the health care of as many as 5 million children insured through the CHIP program. That risk to children’s health may give Kennedy pause.
Nevertheless, Kennedy remains an unlikely vote to uphold the law in this case. His previous actions in NFIB are likely to be repeated.
Odds Justice Kennedy votes to uphold Obamacare: 15 percent.
Justice Antonin Scalia
If this were an ordinary case, Scalia’s vote to uphold the tax credits would be all but certain. Just five months before the Court agreed to hear King, Justice Scalia wrote in Utility Air Regulatory Group v. EPA about “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” A book that Scalia co-authored in 2012 explains that “no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” For Scalia to look at Obamacare and conclude that six words may be read out of context from the law as a whole would be an extraordinary departure from the conservative justice’s previously stated views.
Nevertheless, we’ve seen this movie before. Scalia’s own opinion in Gonzales v. Raich provided a road map for a decision upholding the Affordable Care Act in NFIB, but Scalia decided not to follow it. He voted instead to repeal the entire law.
It is possible that Scalia will feel more of a compulsion in King than he did in NFIB to follow his own previous decisions. But we wouldn’t bet on it.
Odds Justice Scalia votes to uphold Obamacare: less than 10 percent.
Justice Clarence Thomas
Like Scalia, Thomas has also expressed the view that the words of a law must not be read out of context. Rather, according to Thomas, courts should look to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Thomas, however, is well to Scalia’s right on many issues, and he has not gone as far out on a limb as Scalia has by authoring a book that is incompatible with the plaintiffs’ arguments in King. It is not impossible that Thomas would vote to uphold the tax credits, but it is exceedingly unlikely.
Odd Justice Thomas votes to uphold Obamacare: less than 5 percent.
Justice Samuel Alito
Justice Alito is the most partisan member of the Court’s conservative bloc. Among other things, he is the only one of the Court’s Republicans who has never broken with the four other Republican members of the Court to vote with its four Democrats. He frequently uses his questions during oral arguments to bore holes in the position supported by liberals. Alito is the last justice who will cross over to uphold part of President Obama’s chief legislative accomplishment.
Odds Justice Alito votes to uphold Obamacare: he is more likely to be struck by lightning while committing in-person voter fraud.