Will John Roberts or Anthony Kennedy Save Obamacare?

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

WASHINGTON, DC - JANUARY 20: U.S. Supreme Court Chief Justice John G. Roberts (L) and Justice Anthony M. Kennedy stand before the State of the Union address by President Barack Obama on January 20, 2015 in the House Chamber of the U.S. Capitol in Washington, DC. 
Sam Baker
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Sam Baker
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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