As 7th Circuit Judge Richard Posner wrote last year in an opinion striking down same-sex marriage bans in Wisconsin and Indiana, the argument that tradition supports the bans “runs head on into Loving.” That conclusion should resonate with Chief Justice Roberts. And if Roberts is true to his confirmation hearing testimony, he should find in Obergefell that state laws prohibiting same-sex couples from marrying violate their fundamental right to marry.
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The public health community, various members of the energy sector, several states, and the Supreme Court’s own precedents are all on the side of the EPA’s new standards. When the court decides this case in a few months, here’s hoping that a majority of the justices are, too.
At any argument, there are always tough questions for both sides, but the government has to have been happy about the questions that were asked during the King argument — as well as the answers that Verrilli was able to give.
If the Court were to rule against the government, there would not be anything the states or the courts could do if Congress did not step in to fix the problem—yet another reason to hope that the Court does what the ACA’s text requires and holds that the tax credits are available nationwide.
When the Supreme Court heard oral argument this morning in King v. Burwell, the latest challenge to the Affordable Care Act, everyone was eager to hear what Chief Justice John Roberts and Justice Anthony Kennedy, widely viewed as the likely swing voters in the case, would have to say. Chief Justice Roberts was uncharacteristically quiet during the argument, but Justice Kennedy wasn’t. He asked a number of questions that seem to provide a good window into his thinking, and supporters of the ACA should be happy about what that window appears to have revealed.
The text of the Affordable Care Act is clear that tax credits are available for eligible Americans nationwide, as part of the law’s overarching goal to provide quality, affordable health care for all. The King challengers’ contrary interpretation of the Affordable Care Act fails basic rules of reading comprehension, not to mention long-established rules on how to interpret statutes. Their claims shouldn’t get a pass from the Supreme Court.
Opponents of the Affordable Care Act have been caught off guard by the possibility that the challenge in King v. Burwell actually violates principles of constitutional federalism. The federalism argument has been made in two important Supreme Court amicus curiae briefs, one submitted on behalf of 22 states and the District of Columbia, and another on behalf of four law professors – Abbe Gluck, Gillian Metzger, Thomas Merrill, and Nicholas Bagley.
Scalia himself has often endorsed, most recently in a major 2014 decision interpreting the Clean Air Act, the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” This “fundamental canon” underscores the real issue in King v. Burwell: Will he and his fellow conservatives follow common-sense principles fundamental to all legitimate approaches to interpreting laws and uphold the nationwide availability of affordable ACA tax credits—or will they bear out critics who denigrate textualism as merely a sham for rationalizing politically driven, legally flimsy results?
Independent judges applying straightforward legal principles should easily conclude that the Affordable Care Act provides financial assistance to all Americans who need it, regardless of who administers the insurance marketplace in their state.
When the Supreme Court hears oral arguments in King vs. Burwell next week, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he's leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There's one very good reason to think the chief justice will rule for the government again: He's too good a lawyer to do otherwise.