Until oral arguments are held at SCOTUS for King v. Burwell, the challenge to the Affordable Care Act’s subsidies in states that did not create their own insurance purchasing exchanges, we’re probably not going to know any more than we know right now about what the startling acceptance of this case really means. It only requires four Justices to grant cert in a given case, but on something as potentially momentous as this one, it seems unlikely that the four dissenters in the earlier Obamacare case would move so precipitously unless there’s some reason to believe a fifth Justice (presumably the Chief Justice) might be sympathetic. That’s why the New York Times‘ veteran Court-watcher Linda Greenhouse is calling this development a potentially greater act of judicial usurpation than Bush v. Gore. And she points to one theory being offered to conservatives by law professor John Yoo (yes, that John Yoo) at National Review this week:
I assume Chief Justice Roberts is with the original four dissenters from Sebelius two years ago in opposing the administration. This gives him the chance to atone for his error in upholding Obamacare as a valid use of the taxing clause in that case. His decision in Sebelius did great violence to the Constitution’s protections for federalism — it will be the mission of his Chief Justiceship to repair the damage.
Greenhouse cites Yoo’s language as significant:
His choice of the words “atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.
Now this sort of highly public lobbying of Roberts could also indicate he’s not yet on board with the other four conservatives. We’ll have to wait and see. And for that matter, it’s not at all clear what the consequences would be of an adverse SCOTUS ruling on subsidies; some experts are convinced the immediate consequences to middle-class policyholders of losing subsidies are so dire and the “fix” is so easy that Republicans in Congress and/or in the affected states could be convinced to take the very small steps necessary to work around the decision. It will be interesting to watch conservatives talk to each other about all this as the Court term proceeds.