As conservative rage over the outcome of King v. Burwell burns like a California wildfire, the question is inevitably going to be asked: Who flipped?
Somebody did, as the New York Times‘ Linda Greenhouse reminds us today:
The 6-to-3 vote to reject the latest challenge means that one or perhaps two of the justices who grabbed this case back in November had to have jumped ship. Here’s why: It takes at least four votes to add a case to the court’s docket. Given that the decision to hear this case, King v. Burwell, was entirely gratuitous — the Obama administration had won in the lower court, and an adverse decision in a different appeals court had been vacated — we can assume the votes came from the four justices who nearly managed to strangle the law three years ago in National Federation of Independent Business v. Sebelius.
These four were Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Maybe Chief Justice John G. Roberts Jr., excoriated in right-wing circles for having saved the statute with a late vote switch last time, also agreed to hear the new case. Or maybe his four erstwhile allies were trying to put the heat on him. It’s a delicious question without, at least for now, an answer.
The feeling of being betrayed by their black-robed hirelings is not a new thing for conservatives. Indeed, King v. Burwell is small potatoes compared to Planned Parenthood v. Casey in 1992, in which five Justices appointed by Republican presidents (O’Conner, Souter, Stevens, Blackmun, and a young fellow named Anthony Kennedy) voted to uphold the hated Roe v. Wade.
So this latest “outrage” will make the selection and confirmation process for the next Republican-appointed Justice a real murder board. You may recall the last time conservatives were this upset about a GOP SCOTUS appointee–David Souter–we wound up with Clarence Thomas as the next nominee. Hang onto your butts if a Republican wins the presidency in 2016.
