Justice Samuel Alito, the Supreme Court’s most consistently partisan Republican, will almost definitely not write the Court’s decision in a case that could gut the Affordable Care Act if its plaintiffs prevail. During the oral arguments in King v. Burwell, a lawsuit that attempts to cut off tax credits that allow millions of Americans to afford health insurance, Alito emerged as the Court’s leading advocate of a decision hobbling Obamacare.
This assessment, that Alito will not write King, is based on the fact that the Court typically attempts to distribute work equitably among the nine justices. In a given month where the justices sit and hear cases, majority opinions are typically distributed evenly among the Court’s members, so, in a sitting month where the Court heard only nine cases, each justice normally writes one of these nine. When the number of cases heard in a given month exceeds nine, the spill-over cases are typically distributed in a way that ensures that each justice writes at least one opinion and no justice writes three.
SCOTUSBlog maintains a helpful chart that allows Court-watchers to track which justices have already written cases in a given sitting month. Because that chart has not yet been updated to reflect decisions handed down on Thursday, we’ve modified it slightly to reflect an important new development:
King v. Burwell, the case attacking the Affordable Care Act, was argued in the Court’s February sitting (although arguments took place on March 4, the Court began hearing the bloc of cases that includes King in February). On Thursday, however, the Supreme Court handed down two opinions from its February sitting — Davis v. Ayala and Ohio v. Clark — both of which were authored by Justice Alito. Given the fact that Alito has now written two cases in the February sitting, and four justices have written none, it would be very unusual for him to author a third case from this sitting.
Alito is the most junior conservative justice, and junior justices typically are not assigned the Court’s most high-profile cases. Nevertheless, there are good reasons to believe that Alito could have been the exception to this rule if a majority of the Supreme Court agreed with his apparent desire to defund much of the Affordable Care Act. One reason is the simple fact that Alito advocated very hard for the plaintiffs’ position during oral argument, so he may have sought out the opportunity to write King. Additionally, if Alito’s apparent view of King does prevail on the Court, his skill set is unusually well-suited to drafting an opinion supporting the King plaintiffs.
Justice Alito is the Court’s most skilled craftsman of opinions which creatively reinterpret past precedents and legislative developments in order to justify rewriting a federal statute. In Ledbetter v. Goodyear Tire, for example, Alito was confronted with a unanimous Supreme Court precedent that cut strongly against his effort to prevent a woman from seeking equal pay for equal work. Yet Alito adeptly bypassed this precedent, in part by relying instead on another past Supreme Court decision that, as Justice Ruth Bader Ginsburg pointed out in dissent, was overruled by Congress.
Similarly, in Hobby Lobby v. Burwell — the case holding that a for-profit employer could deny birth control coverage to its employees — Alito applied a religious liberty law that was enacted for the explicit purpose of restoring the state of the law as it existed prior to the Court’s 1990 decision in Employment Division v. Smith. Yet Alito’s Hobby Lobby opinion is inconsistent with pre-1990 law, which held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
To achieve this result, Alito relied on an irrelevant amendment to federal religious liberty law, claiming that this amendment was “an obvious effort to effect a complete separation from First Amendment case law” as it existed prior to 1990. A lesser intellect might have struggled to develop a narrative justifying his decision to cast aside decades of precedent, but not Alito! His opinion in Hobby Lobby is a testament to the artisanship of a judge who is singularly skilled at rewriting history.
A decision favoring the King plaintiffs would call upon its author to display similar craftsmanship. These plaintiffs rely on a single passage of the Affordable Care Act that refers to “an Exchange established by the State.” If read entirely out of context, this passage seems to suggest that the tax credits that enable millions of American to afford health insurance are only available in the small minority of states that decided to set up their own health care exchange under Obamacare. Residents of the approximately three-dozen states that elected to have the federal government operate their exchange, under the King plaintiffs’ theory, are out of luck.
There are many problems with this way of reading the Affordable Care Act, but one of the most significant problems is that the word “Exchange” is defined in the law to mean “a governmental agency or nonprofit entity that is established by a State.” Thus, any exchange, whether operated by a state or the federal government, is deemed to be an ‘Exchange established by the State,” and the plaintiffs’ legal arguments are wholly without merit.
It would require a truly masterful craftsman to draft an opinion which explains away the fact that plaintiffs’ reading of the law relies upon a defined term that does not mean what they say it means. It would take a craftsman of even greater skill to explain away this problem while also dealing with the bevy of other evidence in the text of Obamacare which makes it clear that the plaintiffs’ legal arguments are simply wrong.
If a majority of the Court does support the King plaintiffs, in other words, it is reasonable to think that they would want to call upon Alito’s unique talents to overcome the extraordinarily difficult task facing any judge who tries to justify a decision siding with these plaintiffs. The fact that Alito appears not to have been assigned this task does not offer any certainty that the King plaintiffs will lose their case, but it is a hopeful sign for the thousands of Americans who will die if Alito’s apparent views prevail.