Tags: Lithwick | Brawner | ACA | court

Slate's Lithwick Reviews Obamacare Oral Arguments

By    |   Friday, 06 Mar 2015 07:50 AM

Slate Supreme Court Reporter Dahlia Lithwick called C-SPAN's Washington Journal March 5 to give her impressions of the oral argument on King v Burwell held by the Supreme Court the day before.

She was interviewed by Greta Wodele Brawner, who asked what she made out of the arguments for and against the subsidies in the Affordable Care Act (ACA). Lithwick responded that it was "safe to say this is a very partisan, ideological case" (really?!), and the core issue is whether the majority of the states, which don't have state-created exchanges, are going to receive the subsidies that are at the heart of the ACA because of "four little words" in the statute.

Thus, Lithwick saw the four liberal judges beating up the lawyer for the plaintiffs and Justices Sam Alito and Antonin Scalia going after the Solicitor General, who represents the administration before the Court. She characterized this as "not one glimmer of bipartisanship."

However, surely she's aware that the other three justices are Republicans. Justice Clarence Thomas notoriously refrains from asking questions at oral arguments, but what about the other two Republican appointees, Chief Justice John Roberts and Justice Anthony Kennedy? Fortunately Brawner asked about the questioning of Kennedy, widely reported in the press.

Lithwick allowed that it was "a remarkable moment," especially since Kennedy had voted with the conservatives in 2012 and even objected to Roberts joining the liberals to uphold the law. She said that the fact that Kennedy suggested that the prospect of throwing beneficiaries off the rolls raises a constitutional issue seen by Court watchers as evidence that he might supply a vote to help the liberals uphold the law. (So what about the supposed lack of bipartisanship; where is it?)

This writer would point out that saying that the case raises a constitutional question might cut another way and indicate a willingness to strike down the ACA, but the press and the markets seem to have fairly uniformly been buoyed by Kennedy's intervention.

As for the role of Roberts, Lithwick told Brawner that in the face of a spate of editorials urging Roberts either to vote with the conservatives in order to make up for his earlier defection or to reinforce his earlier action by voting again with the liberals, Roberts said "virtually nothing." In sum, she found "no evidence that he felt strongly one way or another." Brawner asked whether this might be intentional (presumably do), and Lithwick reminded her that Roberts has expressed determination that the Court not be seen as political. Lithwick recalled that Roberts had changed his vote in 2012, and she speculated he could still be undecided.

Finally, Brawner asked Lithwick to explain the process and whether there would be a vote. Lithwick said that no, there will only be a straw vote to see how the justices are leaning, and there could be some drafting of memos. (So the answer should have been, yes, there will be a vote, but it is a preliminary one subject to change.) Lithwick said the decision wouldn't be quick but will take until June. As the Supreme Court goes, this is quite expeditious and does not indicate that the court is stalemated. To this writer, regrettably the outlook is for a 5-4 or even 6-3 decision to uphold the ACA again.

(Archived video can be found here.)

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Robert-Feinberg
Slate Supreme Court Reporter Dahlia Lithwick called C-SPAN's Washington Journal March 5 to give her impressions of the oral argument on King v Burwell held by the Supreme Court the day before.
Lithwick, Brawner, ACA, court
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2015-50-06
Friday, 06 Mar 2015 07:50 AM
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