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Surprised that King v. Burwell was 6-to-3?

- June 26, 2015

Supporters of the Affordable Care Act cheer after the Supreme Court ruled that Obamacare tax credits can go to residents of any state, outside the Supreme Court in Washington, D.C., June 25, 2015. (Jim Lo Scalzo/EPA)
On Thursday, the Supreme Court again let Obamacare live on, ruling in King v. Burwell that federal subsidies may be provided to people who purchased health care through exchanges established by the federal government. The question before the court was whether the federal government could do that for low-income enrollees who signed up via a federal exchange, since the text of the Affordable Care Act legislation referred to insurance exchanges established by states. If these subsidies had been struck down, millions of people in the 34 states without individual state exchanges would have lost their subsidies and may have dropped their health insurance coverage, potentially sending Obamacare into a death spiral.
Conservatives are frustrated and vow to continue the fight against Obamacare. Liberals are thrilled the law survived the latest legal challenge.
As often happens, this decision affirms the justices’ strong ideological tendencies. The dissent was by the three most conservative justices (Clarence Thomas, Antonin Scalia, and Samuel Alito) and the majority opinion included the four most liberal justices (Stephen Breyer, Ruth Bader Ginsburg, Sona Sotomayor, and Elena Kagan).
At the same time, this case highlights the interesting and important differences between the Court and the purely political branches. Thirty-five members of Congress signed amicus briefs regarding the case. Republicans (including Sens. Orrin Hatch, Ted Cruz, Marco Rubio and Rob Portman) urged the Court to strike down the subsidies. Democrats (including Minority Leaders Rep. Nancy Pelosi and Sen. Harry Reid) urged the opposite.
If justices were purely ideological in the same manner as politicians, today’s outcome would likely have been different. Justice Kennedy, despite his sometimes fluid ideology, is clearly more a Portman than a Pelosi. And few doubt that Chief Justice John Roberts is more attracted to the policies of the Republicans than the Democrats. If they simply followed their policy preferences, Roberts and Anthony Kennedy would have been expected to vote to undermine, and likely kill, Obamacare.
So even as justices routinely exhibit ideological behavior, ideology can play out differently on the Court than in Congress. Some justices may deviate from ideology for legal reasons, whether those be respect for precedent, what some have called Scalia’s “liberal” tendencies on sentencing or the Court’s support of free speech when few politicians would dare (as in Snyder v. Phelps, which shielded the controversial Westboro Baptist Church  picketers from lawsuits for their offensive signs at funerals).
In this case, there are several possible explanations for why Kennedy and Roberts deviated from publicly expressed views politicians with whom they sympathize ideologically.
Some possibilities are legal. Perhaps Roberts and Kennedy felt judicial restraint is appropriate and sought to defer to Congress if at all possible. While this may be true, it is a dramatic break from recent Court practice as modern justices have been remarkably willing to overturn Congress (see, for example, Bailey and Maltzman’s “The Constrained Court“).
Or perhaps Roberts and Kenney concluded that upholding the tenet that statutes should be read in context is more important than undermining a policy they may disagree with.
Another possibility is subtly ideological: perhaps Roberts and Kennedy foresaw ominous political outcomes for Republicans if the Court eliminated health care subsidies for millions of people. If true, it may be that justices comfortable in the robes of life tenure may be able to take positions that would be very difficult, if not impossible, for Republican politicians who have committed so publicly and forcefully to fighting Obamacare in any way possible.
Whichever explanation is accurate (and it may be impossible to ever know), it is clear that the Court is a unique political institution and that decisions, while hardly devoid of ideological content, will continue to break differently than they would in a purely political arena.
Michael Bailey is a professor at Georgetown University and co-author of “The Constrained Court: Law, Politics, and the Decisions Justices Make.”