All Eyes on Roberts

At 10:00 this morning, the U.S. Supreme Court will hear oral arguments in the case of King v. Burwell, the challenge to the availability of tax subsidies for health insurance purchases by people in the 34 states that did not set up their own exchanges under the provisions of the Affordable Care Act. SCOTUSblog’s Lyle Denniston has a useful brief summary of the case, in which he mildly criticizes those who seem to think the Court’s acceptance of the case tells us how it will decide.

During the arguments all eyes will be on the Chief Justice, presumed to be the swing vote in the case, mainly because of his pivotal role in NFIB v. Sebelius, the 2012 case that upheld the individual mandate feature of ACA. No matter how many warnings we hear that you cannot necessarily discern which way a Justice is leaning by the questions he or she asks in oral arguments, tea leaves will be on sale all over Washington today.

One thing that pretty much has been resolved is that nobody’s got anything like a consensus Plan B to “fix” Obamacare if the subsidies are killed, a factor that many observers think could influence the decision itself. This is particularly true of the Republicans who control Congress; as if to underline the disarray, Ted Cruz (with Marco Rubio as a cosponsor) introduced yet another “Obamacare alternative” proposal just yesterday.

Under the Court’s normal procedures it should hold a conference on Friday to take an initial vote on King v. Burwell and parcel out opinion responsibilities. But we won’t know what happened then until some point in June, barring an unprecedented breach of security, and it’s always possible votes could change, as some reporting suggested may have happened in the earlier ACA case.

It’ll be a fine day for idle speculation.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.