The Key Question Behind King: Is The Court More Partisan Or More Ideological?

Yes, the Court has an activist conservative majority. But if you want to guess the outcome of the latest Obamacare challenge, the question remains: what kind of conservatives are they?

By Nathan Pippenger

When the Supreme Court hands down its decision in King v. Burwell in a few weeks, determining whether to strip Obamacare subsidies from over six million people, it will also be deciding the fate of one of the most absurd legal arguments in recent memory. It is now up to the Court to say “enough is enough!”—or to dignify and reward the argument.

I do not exaggerate. From the first, this legal challenge (a “Hey, look what we found!”-style attempt to do what hysterical obstruction, a separate Supreme Court challenge, a presidential election, and about five dozen repeal votes couldn’t achieve) has been supplemented by an attempt to gaslight pretty much everybody who understands the ACA, or is minimally sentient. This is to be expected from the Fox News crowd, but conservatives a bit higher up on the intellectual ladder played the same game—hence the D.C. Circuit majority’s claim, in a 2-1 party-line ruling, that citing the “broad aims” of the law does “not demonstrate that Congress manifestly meant something other than” to cripple it. That’s the best argument conservatives have: that Congress, while trying to pass universal healthcare, tucked in a tiny, obscure passage—four ambiguous words—that would cripple the law and deny people healthcare. This requires overlooking several pertinent points, including: that nobody mentioned this at the time, that the law’s authors have said over and over that this was not what they meant to do, and, most important, that it makes no sense at all. A massive hospital operator filed a brief with the Court begging them to understand this point: “the consequences of Petitioners’ interpretation are so absurd,” the brief says, “that Congress could not have possibly intended them.”

It gets worse. After spending months on this insulting campaign, Republican politicians are terrified to discover that it might actually succeed. As The Hill recently reported, GOP members of Congress—particularly those facing reelection—are discovering that while snatching healthcare away from Americans for ideological reasons is a popular move with the conservative base, most other people find it distasteful. At the same time, though, these same politicians are sufficiently cowed by their conservative base to reject the obvious fix: clarifying the passage and saving the subsidies. (This conflict resulted in a head-spinning attack from South Dakota’s John Thune—that Obamacare is bad because people are at risk of losing their Obamacare subsidies.) That this GOP Congress would fail to fix the law was entirely predictable to everyone except Justice Scalia; that they might have to seems not to have occurred to some of them.

The bind that Congressional Republicans find themselves in is instructive. It’s difficult to know how the Court will rule on King—it has already come perilously close to killing Obamacare. The Medicaid expansion opt-out dealt a major blow to the law, and the Court might well take the opportunity to deliver another brutal hit. (So much for the “balls and strikes” era.)

But observing that the Court’s conservative majority is politically ambitious does not, on its own, reveal what it might do about King. As the dilemma facing Republicans in Congress shows, there could be huge partisan costs for pursuing the right’s ideological goal in this particular situation. This isn’t always the case: in the past, the Court’s conservative activism has flourished when its ideological and partisan interests aligned—campaign finance being the most obvious example. (Loosening campaign finance regulations is almost always to the benefit of conservatives; money, reading its interests correctly, usually veers right.)

Healthcare is different. The Affordable Care Act is no longer an abstraction, something that might yet become law. It is a life-changing reality for millions of Americans. And for conservatives, this fact has created a split between partisan incentives and ideological ones. It would be ideologically satisfying, but electorally costly, to take away subsidies. It would be politically safer for Congressional Republicans if the Court bailed them out and saved the subsidies, but the right’s ideological bloodlust would remain unsatisfied. As the decision approaches, the question remains: is this majority dominated by partisan conservatives or ideological ones? The distinction is crucial, and the answer might reveal the outcome of King.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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