Discussion: Deeply Divided Supreme Court Drops Few Clues About Obamacare Ruling

Discussion for article #233954

Since standing is one of the (many) weak points in the plaintiff’s case, did our guys drop the ball here?


Maybe this is a paranoid worry, but might Kennedy be laying the groundwork for tossing out the ACA as unconstitutional? For instance, suppose he agrees with the plaintiffs that the ACA’s language denies subsidies to citizens in states without state-created exchanges. But as he notes, this would send the insurance markets in such states into a death-spiral. So with this reading, the ACA in essence compels states to form state exchanges. That’s the worry that Kennedy voiced this morning. Now, to my mind, that problem is decisive evidence that the plaintiff’s reading of the ACA language is flawed. But it’s open for Kennedy (and other conservative justices) to say: the plaintiff’s reading is right, and since on this reading the ACA is unconstitutional, it follows that the ACA is unconstitutional.

I doubt Kennedy would go in for such a naked act of judicial activism. But I’m starting to worry…


Basically what Scalia is saying is that we should ignore the rest of the text in the law and only focus on that one sentence. Got it. He’d be a horrible book reviewer.


“Standing — the question of whether any of the four plaintiffs truly suffer an injury that allows the courts to step in — could also be an issue.”

Not from what I have been reading on SCOTUSblog. Ginsberg tried to raise the standing question, but it was largely poo-pooed by the conservatives and treated as a non issue. She dropped that line of questioning pretty quickly. I think it was more just a CYA move by her than anything else.

The big surprise is the question Kennedy seemed to be raising…which is, by accepting the plantiff’s argument, the Court would essentially be back tracking on their ruling regarding the Medicaid expansion…namely that Congress is unconstitutionally being coercive with the states.

But, as I often say about Scalia, he firmly believes that consistency is the hobgoblin of lesser minds, so it won’t bother him.


Why isn’t standing being more passionately questioned on this case? Isn’t that the first, and the most basic, question the Court should address?


That fetid fuck Scalia, who I wish would keel over in the next millisecond, in the prior case described in some detail how the subsidies operate.

He’s a wretched, reprehensible human being. His existence is a blight upon the species.


Ya, me too. This will be close. I am just hoping that Roberts will save the day.

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Nope. There was questioning by “our guys” on the issue of standing.

EDIT: Oops, my bad. I missed the part in the article saying the government didn’t have all of the necessary info. on that issue.

It should be yes…even before the Court agreed to hear the case. But since they went to such unprecedented lengths to grant cert in this case, its pretty clear that the con justices believe standing is irrelevant here. That’s why Ginsburg threw it out there, but didn’t pursue it that hard…its going nowhere, the cons want to hear this case come hell or high water, so might as well get it out of the way.



Maybe I am being too optimistic, but my take away from Kennedy’s questions was that he is leaning more towards siding with the liberals, based on the Court’s prior reasoning in the previous Obamacare case. And while he most certainly can be a conservative ass, he is the most likely conservative to take into consideration the bigger picture…namely that trashing the nation’s health care insurance market place in no way serves the country.


I agree, the Solicitor had an opening here but didn’t run through it. How can he say he lacks necessary details?

Not so sure you’re paranoid. There was an article here on TPM that said something similar (sorry, no link). A ruling that damaged the ACA in such a way as to disproportionately injure red-staters on the eve of a presidential election campaign always seemed to be a stinking bad strategy to me – but a ruling that killed it dead in all 50 states might work to the R’s advantage. They could claim that Obama’s incompetence killed healthcare and made his presidency a failure. Why put another D in office who also had a failed healthcare plan?

One of the core principles of statutory interpretation, based on roughly 100 years of precedent, has been that statues should be given readings that avoid serious constitutional concerns or questions. So if there are two possible interpretations of a statue, the one that avoids constitutional questions should be chosen. Thus, his suggestion that the ACA challengers’ reading involves constitutional questions would typically be seen as an indication that he would favor the reading that doesn’t raise such questions.

But… I would not be completely shocked if that precedent is thrown under the bus and Kennedy says that no reading other than the challengers’ could be given to the statute, rendering the statute unconstitutional.


Not really. One plaintiff at least probably had standing & if not her (I believe it’s a her), the issue just would be delayed. There is SOMEONE for the wingnuts here to use that has standing. Realistically, we can call them out for inconsistency, but nothing new there.

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I have little doubt that Kennedy and three other justices would hesitate to declare the entire law unconstitutional on the basis of their tortured rationalizations. The only question is whether Roberts would, and I’m betting that he wouldn’t be willing to destroy the institution of the Supreme Court based on such a highly partisan ruling. Perhaps of equal importance, he wouldn’t be willing to allow insurance companies to lose a lot of money.


kennedy believes that late-term abortions contribute to mental illness. a theory totally discredited
i do not trust him at all:


I read this on the Daily Beast:
" One of the classical canons of judicial interpretation is called the Canon of Constitutional Avoidance. It holds that if a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems."


Dont be so insulting to Fred!!