Kennedy Doesn’t Swing That Way: Predicting the Outcome in King v. Burwell

In early March, the Supreme Court heard oral arguments in King v. Burwell, to decide whether, under the Affordable Care Act (ACA), subsidies may be provided to individuals on health care exchanges which were set up by the federal government for the states which opted not to do so. This highly watched case revolves around four words in Section 1321 of the ACA, which states that subsidies may be provided to individuals on an “Exchange established by the State...” The challengers claim this means that subsidies are available only on exchanges established directly by a state and not on exchanges created by the federal government for a state. The government argues that looking at the law as a whole, an “Exchange established by the State” includes those established for a state by the federal government.

This post isn’t intended to rehash the arguments of the case. As no one can plausibly deny, this case is simply another partisan and ideological ploy to unravel the Affordable Care Act, yet another episode in a “never-ending saga,” to use Justice Kagan’s words. The question now is how will the Court rule? Based on oral arguments and general consensus, Justices Ginsburg, Breyer, Sotomayor, and Kagan will side with the government and Justices Scalia, Thomas, and Alito will side with the challengers. Observers agree that the votes of Chief Justice Roberts and Justice Kennedy will decide the fate of the law. Following oral arguments, much of the commentary (that I read) guessed that at least one, if not both, were more likely than not to side with the government. Roberts said very little during oral arguments; Kennedy said quite a bit. Just as the words “established by a State” need to be viewed in context, so do Kennedy’s and Roberts’ potential votes.

Justice Kennedy expressed concerns about federalism during oral arguments, leading many to speculate he may well side with the government. Specifically, he indicated that the challengers’ interpretation of the statue would be unconstitutionally coercive to the states that didn’t set up their own exchanges. To quote Justice Kennedy:

Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on -- on the subsidies. The cost of insurance will be sky high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.

It is possible that Kennedy will side with the government on these grounds. But I don’t buy it.

Those who followed oral argument in the 2012 ACA cases will recall that following OA, it was generally expected that the fate of the ACA would come down to Kennedy. He asked questions critical of both sides in that case, and while Solicitor General Donald Verrilli was widely panned for his lackluster performance before the Court in that case, some believed Kennedy might still vote with the liberals to uphold some or all of the law. Chief Justice John Roberts also asked questions critical of each side in those cases, and there was some speculation that he might join Kennedy if he were to vote to uphold the law, so that the outcome would be a less divided 6-3 decision, rather than 5-4. Further, the Court had several possibilities before it: uphold the law in its entirety, strike down the mandate but uphold the remainder of the law, or strike down the entire law. There was also the somewhat separate issue of the Medicaid expansion, which the Court could have upheld as written, struck down in part, or struck down entirely.

Justice Kennedy, the hope of so many liberals, voted with three other conservative justices to strike down the Affordable Care Act in its entirety: the mandate, the Medicaid expansion, everything. On Chief Justice Roberts’ compromise position for the Medicaid expansion—to rule it coercive to essentially force states to expand Medicaid, but allowing them to opt in to the expansion—Justice Kennedy disagreed, writing with Justices Scalia, Thomas, and Alito that because the Medicaid expansion was coercive as written, “the most natural remedy” was to strike it down entirely. In the 2012 case, with a number of options available to him, Kennedy took the most conservative position possible.

One could say, “But this is a different case. Kennedy could have accepted the outcome of that case and approach this one on its own terms.” Perhaps, but just last year, during oral argument in the Hobby Lobby case, Kennedy indicated that he wants to revisit the constitutionality of the ACA.

JUSTICE KENNEDY: Is it your position that part of the compelling interest here is that you have to protect the integrity -- the operational integrity of the whole Act?

GENERAL VERRILLI:  It is part of our argument, absolutely. And—but it—but there is in addition to that, much more--

JUSTICE KENNEDY:  Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI:  Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

That exchange is important to bear in mind, I think, when considering that at least four justices voted to grant cert in King, at a time when there was virtually no reason for the Court to grant cert. Linda Greenhouse wrote a passionate article in the New York Times last November expressing her dismay about the Court’s decision to grant cert. Of course, she falls on the liberal/progressive end of the spectrum, but her article nevertheless indicates the reasons the justices had to not take the case when they did.

Since there’s no reason to believe the liberal justices would have voted to grant cert, let’s try to get to four. It’s safe to assume that Justices Scalia, Thomas, and Alito were among those four. Therefore, either Roberts or Kennedy, or both, voted to grant cert. Chief Justice Roberts’ went to great pains to make the Court not appear as another blatantly political branch of government in the first health care case. Why would he change that approach now, in yet another health care case?

As demonstrated in the exchange from OA in Hobby Lobby quoted above, Justice Kennedy suggested just last year that he wants to reexamine the Act’s constitutionality. King could provide that chance. Interestingly, this case has been discussed as being a statutory case, not a constitutional case, because it deals only with statutory construction. Yet in oral arguments, Justice Kennedy was trying to turn it into a constitutional case, so he evidently is still transfixed by the constitutionality of the Affordable Care Act.

It’s true that someone listening to oral arguments with no background information in mind might reasonably interpret Justice Kennedy’s remarks to mean that he will decide in favor of the government. But considering his vote in the 2012 ACA case, and in particular his vote to strike down the entire Medicaid expansion as unconstitutionally coercive, along with his remarks during the Hobby Lobby oral arguments, I think he will use King as another attempt to strike down as much of the law as he can on constitutional grounds.

Ruth is always watching you, Tony

Ultimately, though, I think the Chief Justice will vote with the four more liberal justices to uphold the administration’s interpretation of the law. Based on his only substantive remark from oral arguments in King, I think Roberts will vote to uphold the government’s interpretation under the doctrine of administrative deference, and then basically quote himself from three years ago saying “the Court does not express any opinion on the wisdom of the [administration’s interpretation]. Under the Constitution, that judgment is reserved to the people.” Then maybe he’ll throw in something else begging the other conservatives not to grant cert to every health care case that comes along, under the doctrine of not being petty jerks.

What do Chief Justice Roberts’s Hollingsworth and Windsor opinions tell us about how he will vote in Obergefell?

When the Supreme Court, once and for all, grants a nationwide, constitutional right to same-sex marriage by the end of its current term in June, Justice Anthony Kennedy is widely expected to write the majority opinion. He’s ready for it, people say, having written the trifecta of opinions that paved the way for this moment (Lawrence, Romer, Windsor).

But that rests on the assumption that the Chief Justice will not be in the majority. If he is, it seems absurd to suggest that he will assign the opinion to Kennedy and rob himself of the chance to write such a historic opinion (and narrow its breadth, but more on that later). So, what will Chief Justice Roberts do (WWCJRD)? Will he insist on his conservative agenda or lead the majority in a case that will undoubtedly paint broad strokes on his legacy? We can’t know for sure, so I’ve been spending an unhealthy amount of time looking for clues and reading tea leaves, starting with his majority opinion in Hollingsworth v. Perry and dissenting opinion in United States v. Windsor.

First, I think there’s something to be said about the fact that the Chief has published only two opinions so far, as of this writing. His last majority opinion was almost two months ago, published January 21. Compare this with Scalia’s four opinions, all of which Roberts joined (two were unanimous).

That means Roberts has been assigning opinions left and right (or "right and right," as a friend suggested- get it?) to Scalia, the second most senior Justice, and trying to clear his backlog. I wouldn’t be surprised if Roberts disposes one or two more of his majority opinions between next week and April 28, when the Court hears Obergefell. What does this tell us? I think it suggests that he’s interested in writing the Obergefell majority opinion.

This desk-clearing exercise is reminiscent of what happened in Hollingsworth v. Perry almost two years ago (see table above, courtesy of SCOTUSBlog). Cert was granted in December, and oral arguments were in March. For the December and January sittings, the Chief had three opinions, and all them were speedily released by February (he’d also been assigning himself unanimous opinions- bah!). By the time the Court heard arguments in Hollingsworth, the Chief had only two opinions churning in his chambers: Shelby County (an explosive opinion that he unsurprisingly claimed for himself), and Kiobel, a reargued case that was released two weeks after Hollingsworth arguments. In other words, the Chief had relatively little homework left and was ready to write the majority opinion in Hollingsworth even before they voted for it. It's not completely crazy to say that we might see something similar with Obergefell.

Enough of the behind-the-scenes in Hollingsworth. What does the Chief’s opinion actually say?

I find it interesting and telling that he started the opinion with this: “The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation.” Then he stops in his tracks and proceeds to talk about the technical limits to this litigation, concluding that the petitioners did not have standing to appeal the District Court’s decision and “assert the State’s interests.” He never again follows up with the “active political debate” that he started the opinion with… until his dissent in a different case, in Windsor: “We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case.” The perfect vehicle for that issue has now arrived, called Obergefell v. Hodges.

Let’s talk about those “State’s interests” for a second. Prop 8 was about the definition of marriage. Same-sex couples had access to the benefits and obligations, etc. of marriage, but because Prop 8 insisted that marriage was limited to the union of man and woman, same-sex couples could not get “married.” The District Court reversed this and same-sex couples were able to get married-- in California. The Supreme Court’s decision left intact other states’ definitions of marriage.

In Windsor, however, Justice Kennedy struck down the Defense of Marriage Act (DOMA) and admonished the federal government not to make distinctions between these marriages, when it grants benefits to those couples. Sure, States can define marriage in their own terms but the federal government should recognize all marriages, including same-sex marriages.

What did the Chief say -- and not say -- to all these? Like Hollingsworth, we did not have to decide the merits of Windsor. But since we did, I disagree because we should not loosely assign animus and bigotry to Congress as the majority does. [eerie silence follows from lack of legal analysis]

He adds: Thanks, Justice Kennedy, for your “logical and necessary” disclaimer that this decision is limited to those marriages already recognized by the states. You “go off course, as I have said, but it is undeniable that [your] judgment is based on federalism.” Unlike Scalia, I do think that this IS a federalism question. When we do decide “future cases about the constitutionality of state marriage definitions,” we will have to confront the the same arguments of “state diversity and sovereignty” that you use to strike down DOMA today. But let’s leave that for another time. (The Chief is expert at keeping his cards close to his chest.)

Again, unlike Scalia, the Chief was very friendly to Kennedy: it’s noteworthy that he joined only Part I of Scalia’s barbed-wire dissent, standing firm in his conviction that the judicial inquiry should have ended in the standing question. Alito’s inane rant about his theory of jurisdiction? The Chief was having none of it.

In the end, I think there’s reason to believe the Chief will use the federalism question in Obergefell and rule something along the lines of what Judge Shelby wrote in Utah: “the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”

If he does, he will certainly write it in narrow terms, as he is notoriously wont to do. If they’re in the same camp, I don’t think Roberts will let Kennedy go on his Oprah-like give-away spree of constitutional rights to gays.

Lastly, is the Chief Justice really capable of overriding his jurisprudence to seize the moment at hand? I certainly think so (His mentor Rehnquist did it in Dickerson v US, when he refused to overturn Miranda). There are about five weeks between now and Obergefell oral arguments and there are many things left to explore: the opinions that the Chief will release between now and April 28 (and what they look like); the Chief’s influence in revising the questions in Obergefell; Justice Thomas’s claim that he had wanted to hear and decide the seven same-sex marriage cases in October (where in the world did that come from??); a thorough examination of the amicus briefs and which ones, if any, will make its way into the final opinions; etc. etc..

For now, I’m dreaming of a 6-3 opinion in Obergefell.