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Playing Politics with the Supreme Court Over Obamacare

October 23, 2014

As the mid-term elections fast approach, it's not just congressional races that are getting hotly partisan. The proponents of the latest challenge to the Affordable Care Act are racing to the Supreme Court, and playing politics with the law in the process. Michael Carvin, the lead attorney in this round of attacks on the ACA, apparently expects the Supreme Court to play along with him. But he might have trouble convincing the Justices to join his game.

At an event at the conservative Heritage Foundation last month, Carvin offered his outlook on King v. Burwell, a challenge to the availability of subsidies for low- and middle-income Americans to purchase insurance under the ACA, in unashamedly partisan terms. Explaining why he believes the Supreme Court will take the unusual step of hearing the case now, rather than waiting for the U.S. Court of Appeals for the D.C. Circuit to conclude its in-progress consideration of a similar case, Halbig v. BurwellCarvin told a reporter: "I don't know that four justices, who are needed [to take the case] here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think." Carvin also added that he's "not going to lose any Republican-appointed judges' votes" when the full D.C. Circuit eventually decides the case, apparently dismissing the ability of these respected federal appeals court judges to think for themselves and apply the law in an impartial fashion (as they have sworn to do).

Of course, Carvin was not willing to be so crass when he filed a brief last week, yet again urging the Supreme Court to take up King without waiting for the D.C. Circuit to conclude its review of Halbig (also being litigated by Carvin). Instead, he expressed confidence that the Justices will agree to hear King immediately because it poses a question of national importance in need of immediate resolution from the High Court. But Carvin's more candid, off-the-cuff comments at the Heritage Foundation reveal the unabashedly political calculation behind his pushing the Court to hear King now. That he's already dismissed a future ruling from thirteen federal judges sitting on what many call the second-most important court in the country as something from a "bunch of Obama appointees on the D.C. Circuit" betrays his jaundiced view of the federal judiciary and the role of judges. He's counting on judges and Justices to vote in party line with the President who appointed them to the bench.

This view of the federal courts has been decried by none other than Chief Justice John Roberts. Perhaps Carvin was too busy giving presentations of his own to pay attention to a recent speech by the Chief Justice, but the cynical and highly political view of the courts espoused by Carvin is deeply troubling to Chief Justice Roberts.

Lamenting that "partisan rancor" plagues the executive and legislative branches, Roberts told an audience at the University of Nebraska College of Law, just one week before Carvin's remarks, that the third branch of government must be different. "I don't want it to spill over and affect us," he said. "That's not the way we do business. We're not Republicans or Democrats."

The Chief Justice said he fears that Americans will come to view the Supreme Court as a "political entity." "I worry about people having that perception, because it's not an accurate one about how we do our work," he added. "It's important for us to make that as clear as we can to the public."

Carvin clearly hasn't gotten the message. Despite the Chief Justice's insistence that judges are "not Republicans or Democrats," Carvin has summarily predicted how the D.C. Circuit judges will rule based on the party of the President who nominated them. Then, when "[a]sked if he believes he'd lose the votes of any of the five conservative justices, he smiled and said, 'Oh, I don't think so.'" In other words, Michael Carvin thinks he has a Supreme Court ruling in the bag, and is confident that a sufficient number of the Justices will be willing to pre-empt the D.C. Circuit's current consideration of the same issue based on little more than the fact that a majority of the active judges on that court were appointed by a Democratic President. This reflects disrespect for the impartiality of the judiciary and its usual processes, as well as, apparently, an assumption of partisan hackery on the part of the Supreme Court's conservative bloc.

To be sure, Presidents are expected to nominate judges who share their jurisprudential views and, in some sense, ideology. Many Justices and judges can be fairly viewed as "liberal" or "conservative." But for a lawyer to publicly announce that he expects the Justices of the Supreme Court to essentially disregard the judgment of lower court judges based on the party of the President who nominated them threatens to solidify the idea, so troubling to Chief Justice Roberts, that the Court is a "political entity," just like Congress or the Executive branch. A decision by the Court to hearKing before the D.C. Circuit has a chance to rule in Halbig could be perceived as a vindication of Carvin's partisan assessment of the judiciary, and could send precisely the message that Chief Justice Roberts has cautioned against.

Cross posted on Huffington Post

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