Watching the SCOTUS Scuttle Us


Of the many injuries that the John Roberts Court has brought on American law and the U.S. Constitution, King v. Burwell may well be the worst. 

The Roberts Court appears to have abandoned any pretext of standards, of precedent, neutrality or apoliticality. They have performed a patent, political act and granted certiorari in a case that meets none of its standards for review. Because the case involves the Affordable Care Act, it is a highly partisan act. Whatever the decsion of the Court, the damage to the institutions of the U.S. government may be permanent.

The U.S. Supreme Court generally gets to decide whether or not to hear an appeal. There are well-developed standards that the Court uses to make the decision. For example, if there is conflict among the various circuit courts of appeal, with different circuits reaching different results on the same issue, then the SCOTUS steps in to resolve the conflict. Less commonly, an important question of constitutional law can arise, and the SCOTUS, the ultimate arbiter of constitutionality, will step in. And very rarely – exactly once, in fact – the court will step in where there is a political crisis. That would be Bush v. Gore, where the SCOTUS gave the presidential election to the loser.

But King v. Burrell fits none of those standards. The case involves an interpretation of the language of the Affordable Care Act. There’s a strained interpretation of the statute that would deny federally subsidized health insurance premiums to persons buying through the federal health exchanges. The interpretation has been rejected by the Department of Health & Social Services and by every court that has considered the issue.1 There is no conflict among the circuits.

The issue doesn’t involve any question of constitutional law. Recall that the constitutional law challenges to the Affordable Care Act have already been largely rejected.2

There is no crisis threatening the existence of government of the country. King v. Burwell doesn’t jeopardize a presidential election or something.

So if none of the grounds the SCOTUS has used in the past to hear an appeal are present in King v. Burwell, why did the court decide to hear the case? Remember, the Court didn’t have to elect to hear the appeal.

There are three theories among the pundits.

The first is that this isn’t Chief Justice Roberts’ idea, that the four dissenters in the case affirming the Affordable Health Care Act,  Sebellius, want to take another crack at throwing the Affordable Health Care Act out. Or to make Chief Justice Roberts squirm again. This theory is supported by no less an “authority” than law professor and unindicted war criminal John Yoo. Prof. Yoo wrote in National Review Online that King v. Burwell gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.” Interesting choice of words for a war criminal: “atone.” But WC digresses.

The second is that Chief Justice Roberts has changed his mind, and will use King v. Burwell to gut the Affordable Care Act. And the credibility of the SCOTUS in the process. But hey, you can’t make an omelette without breaking eggs. Or a branch of the federal government.

The third theory is that Chief Justice Roberts will use King v. Burwell to attempt to restore some order among the noisier conservatives of his fractious court. Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., the four who wanted to axe the ACA, and who almost certainly voted to hear King v. Burwell, could be slapped around a bit by a strongly worded majority opinion. But that may be giving John Roberts too much credit.

It’s increasingly clear to WC that the Roberts Court is giving up any pretense of being a court. The Roberts Court ignores precedent, ignores the plain meaning of the Constitution. It grants human rights to corporations as it denies them to natural persons. Putting a black robe on a jurist makes them a judge. Putting a black robe on a politician leaves you with a politician. What was once the bulwark of individual freedom has become a lapdog for big business.

All of which is why WC worries about the implications of King v. Burwell for our form of government.


  1. The United States Court of Appeals for the District of Columbia Circuit did rule 2-to-1 the other way, accepting the the argument that the tax subsidies are only available to those who buy insurance through the state exchanges, which only 14 states have chosen to set up. The full appeals court quickly vacated the panel’s decision and agreed to rehear the case. The new argument was set for next month, and the briefs were already filed. 

  2. See National Federation of Independent Business et al. v. Sebelius, et al. if you’re up for a really long read. 
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One thought on “Watching the SCOTUS Scuttle Us

  1. Sticky issues like private property, DOT regulations and lack of established pedestrian lanes and sidewalks violate my right to locomotion if I don’t comply with what any normal rational person considers a “mandate” to purchase auto insurance. On the other side of the liberties coin toss: government subsidizes General Motors, Ford, Fiat, and Royal Dutch Shell…

    Suck it up SCOTUS, both sides of this argument are watching you.

    So, being that (in theory anyway) human labor is the most unapologetically inescapable fundamental resource behind all GDP–including that which is derived from financial derivatives–I wish the rabid dog of dark money God speed in chewing off its own foot.

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