Will John Roberts or Anthony Kennedy Save Obamacare?

Lawyers tailor their appeals to each in the fight over the law’s health insurance subsidies

Feb. 16, 2015, 3 p.m.

Obama­care’s fu­ture rests with one of the Su­preme Court’s con­ser­vat­ive justices. But no one is quite sure which one.

The health care law’s in­sur­ance sub­sidies — and, by ex­ten­sion, its fun­da­ment­al struc­ture — can’t sur­vive un­less one Re­pub­lic­an-ap­poin­ted justice votes to pre­serve them. But law­yers on both sides of the case are di­vided over who is more likely to cast that vote: Chief Justice John Roberts, or Justice An­thony Kennedy.

Kennedy, of course, has the repu­ta­tion as the Court’s tra­di­tion­al swing vote. Yet it was Roberts who cast the de­cid­ing vote to up­hold Obama­care in 2012. With or­al ar­gu­ments less than a month away, the law’s chal­lengers aren’t sure whom they ought to be more wor­ried about this time — and its sup­port­ers aren’t sure whom they are most likely to win over.

(RE­LATED: Why Obama­care Will Lose)

Mak­ing things more dif­fi­cult: In King v. Bur­well, the case chal­len­ging Obama­care’s sub­sidies in most of the coun­try, the ar­gu­ments most likely to ap­peal to Roberts and the ar­gu­ments most likely to ap­peal to Kennedy aren’t ne­ces­sar­ily the same.

“If you were think­ing about this from the law­yers’ per­spect­ive, it would be a mis­take to take either the chief or Justice Kennedy for gran­ted,” said Kev­in Walsh, a law pro­fess­or at Rich­mond Uni­versity and a former clerk for Justice Ant­on­in Scalia.

When the case first reached the high court, the pop­u­lar as­sump­tion among leg­al ex­perts was that it would fall along the same lines as the 2012 case over the in­di­vidu­al man­date: four locked-in votes on each side, with Roberts caught in the middle.

The broad strokes of that as­sump­tion are easy enough to un­der­stand: The chief justice’s 2012 de­cision was, in no small part, a re­flec­tion of his con­cern for the Su­preme Court as an in­sti­tu­tion. A rul­ing against the ad­min­is­tra­tion in King would have many of the same polit­ic­al and prac­tic­al ef­fects that Roberts was try­ing to avoid back then: It would wreak hav­oc on real-world in­sur­ance mar­kets, as well as the sig­na­ture do­mest­ic achieve­ment of a sit­ting pres­id­ent.

(RE­LATED: Why the Obama­care Case Drives Wash­ing­ton Crazy)

Fur­ther­more, un­like 2012, mil­lions of people now have in­sur­ance through the law’s ex­changes and are re­ceiv­ing the sub­sidies at is­sue in King. Roberts already saved Obama­care once — why would he cripple it now, after it has star­ted to work?

But the King case is much dif­fer­ent from the chal­lenge to the in­di­vidu­al man­date, in ways that could make it easi­er for Roberts to side with the chal­lengers.

Most im­port­ant, it’s not a con­sti­tu­tion­al ques­tion. It’s about in­ter­pret­ing the text of the stat­ute — an area of law that in­creas­ingly be­longs to con­ser­vat­ives, in­clud­ing Roberts.

“Where Roberts tends to trim his sails is where a rul­ing would really tie Con­gress’s hands,” said Jonath­an Adler, a law pro­fess­or at Case West­ern Re­serve Uni­versity who has been in­stru­ment­al in the case against the sub­sidies. “Roberts shies away from broad con­sti­tu­tion­al ques­tions be­cause he doesn’t want to take power away from Con­gress. He would much rather say, ‘Con­gress, you screwed up; try again,’ than, ‘Con­gress, you can’t do that at all.’ “

That’s pre­cisely the dy­nam­ic that has many lib­er­als wor­ried about King. They’re afraid the justices will rule, es­sen­tially, that there’s a glitch in the Af­ford­able Care Act, but that it’s not their job to fix it. Such a rul­ing would be ex­tremely dam­aging to Obama­care, but might seem en­tirely con­sist­ent with Roberts’s ver­sion of ju­di­cial min­im­al­ism.

(RE­LATED: The One Word That Could Save Obama­care)

“It would be a mis­take to simply as­sume the justices will vote the same way they did on [the in­di­vidu­al man­date],” Walsh said.

And that means Kennedy could be in play this time.

Kennedy didn’t get much at­ten­tion at the out­set of King v. Bur­well, mainly be­cause he was seen as ir­re­triev­ably hos­tile to Obama­care. The dis­sent he joined in 2012 was blis­ter­ing, ar­guing that the en­tire law — not just the in­di­vidu­al man­date — should have fallen. And Kennedy re­portedly res­isted ag­gress­ive lob­by­ing by Roberts to change his vote.

But the same factors that could change Roberts’s ana­lys­is could also change Kennedy’s.

“I think Kennedy is the more likely swing vote,” Adler said.

Stat­utory in­ter­pret­a­tion and tex­tu­al­ism are im­port­ant to con­ser­vat­ives like Roberts and Scalia, but that’s nev­er been Kennedy’s wheel­house. He’s much more likely to make his mark on con­sti­tu­tion­al ques­tions — and to con­sider broad­er is­sues, like the over­arch­ing pur­pose of a law, in stat­utory in­ter­pret­a­tion cases. He might be open to the Justice De­part­ment’s ar­gu­ment that Con­gress in­ten­ded for sub­sidies to be avail­able in both state-run and fed­er­ally run ex­changes, ir­re­spect­ive of that “es­tab­lished by the State” lan­guage.

“His ap­proach to text is maybe not as con­sist­ent as some of the oth­er justices,” Adler said.

The bal­ance of state and fed­er­al power is also a pet is­sue of Kennedy’s, and some of Obama­care’s al­lies have played up a fed­er­al­ism ar­gu­ment in their briefs to the Court. A group of state gov­ern­ments, in an amicus brief in King, ar­gued that a rul­ing in­val­id­at­ing the sub­sidies would upend the deal states thought they were mak­ing.

States al­ways as­sumed that their res­id­ents would get sub­sidies no mat­ter which level of gov­ern­ment set up their ex­changes, the states ar­gue — some of them said so ex­pli­citly as they laid out their de­cision not to pro­ceed on their own. If Con­gress meant to deny sub­sidies to res­id­ents of those states, it should have said so more clearly, they ar­gue.

(RE­LATED: Why Obama­care Will Win)

“Con­gress did not give States clear no­tice that their cit­izens would be pun­ished and their in­sur­ance mar­kets ruined if the State chose [a fed­er­al ex­change],” the states wrote.

Even law­yers on the oth­er side of the case say that ar­gu­ment could work — maybe with Roberts, and more prob­ably with Kennedy.

“My view on those is that they’re ser­i­ous ar­gu­ments. They’re in­ten­ded to ap­peal to the chief and/or Justice Kennedy, I don’t find them con­vin­cing un­der cur­rent pre­ced­ent. “¦ [But] I think there are some justices on the Court who are open to mov­ing the law in that dir­ec­tion,” Adler said.

Not every­one is so sure Kennedy is up for grabs, though.

Some lib­er­al ad­voc­ates worry privately that he’s simply too pre­dis­posed against Obama­care. And, while the Justice De­part­ment’s brief — the one that counts — in­cludes those fed­er­al­ism ar­gu­ments, its primary em­phas­is is on the text and pur­pose of the stat­ute, ar­guing that, read as a whole, the law clearly treats state and fed­er­al ex­changes the same.

Har­vard pro­fess­or Lawrence Tribe, who re­cently pub­lished a book on the Roberts Court, be­lieves Roberts might be open to that in­ter­pret­a­tion.

“A lot of con­ser­vat­ives say, ‘The text is clear, it’s about an ‘ex­change es­tab­lished by the state.’ Roberts is not go­ing to find it that simple. The text is at least am­bigu­ous. It uses terms like ‘such ex­change’ when re­fer­ring in­ter­change­ably to an ex­change that a state sets up it­self and to the fed­er­al ex­change a state might choose to treat as its own,” Tribe told The Wash­ing­ton Post.

Roberts — not Kennedy — is prob­ably the key to King, Tribe said in the same in­ter­view.

“I think it’s very likely he will be. But it’s pos­sible that if he votes to up­hold the ad­min­is­tra­tion’s po­s­i­tion, Justice An­thony Kennedy could con­ceiv­ably join him,” Tribe said. “But I think if he does not vote to up­hold the ad­min­is­tra­tion’s po­s­i­tion, then it’s al­most in­con­ceiv­able that it would be up­held.”

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