Program Note: I'm on vacation today and Monday. Due to the breaking news this morning, I thought I'd run this column again, despite the fact that it originally ran only three weeks ago, on June 8. Call it my own personal victory lap if you will.
For political wonks, June is not the month to celebrate grads, dads, and brides, but instead the biggest SCOTUS month of the year. SCOTUS (for the un-wonky) stands for "Supreme Court Of The United States." June marks the end of the Supreme Court's yearly session, and it is when all the biggest decisions get handed down.
This year, there are many important decisions we'll be hearing about all month long, but the biggest two (or the two with the biggest political overtones, at any rate) will likely be held back until the very end of the month. They are Obergefell v. Hodges and King v. Burwell. The first will settle once and for all the question of marriage equality for same-sex couples, and the second will determine whether millions of Americans will lose their health insurance subsidies or not.
Now, guessing which way the court will rule is always a risky proposition. Some even call it a fool's game. Nevertheless, I'm going to go out on a limb today in a burst of (perhaps) foolish optimism, and predict that both decisions will actually be good news. We've already seen a flurry of "sky is going to fall" stories (especially over King) from liberals in the media, and my guess is that this trend is only going to increase, the closer we get to the end of the month. So I thought one article from a more optimistic perspective might be appreciated -- even if my guesses turn out to be utterly wrong, in the end. That, of course, is always the risk you run when going out on a limb during SCOTUS season. Time will tell whether I'm right or wrong, but for now, here's my take on these two cases, seen mostly through the lens of politics.
Obergefell v. Hodges
This is almost a case study (pun intended) of how the Supreme Court really likes to decide very contentious social issues in as gradual a fashion as they can get away with. The Obergefell case is going to be the culmination of the process begun by two earlier cases, United States v. Windsor and Hollingsworth v. Perry. These previous cases legalized some gay marriages and threw out a state-level "defense of marriage" law (which had been passed by Californian voters) as unconstitutional. However, the Supremes declined to unequivocally state that marriage was a constitutional right for gay couples across the land. What this meant was that each of the two decisions had very limited effect, at least at first.
The lower courts, however, saw which way the Supreme Court was heading, and they began striking down "heterosexual only" marriage laws in state after state. This has brought gay marriage to around three-fourths of the states, but it is not yet universal across all of them. After dozens of state laws were struck down, finally one federal court ruled for such laws, which set up the confrontation which brought the case back to the highest court in the land.
This was all pretty much by design. John Roberts didn't want to impose gay marriage on the whole country all at once, when (at the time) only a relative handful of states had legalized it. So the decisions were written very narrowly, to give the country time to get used to the idea, and to offload much of the contentiousness on the lower courts.
This is a fairly normal way for the high court to partially dodge a contentious issue, it must be stated. What is astonishing is how fast the whole process played out. The two previous court decisions were handed down in June of 2013, and at the time I guessed that it'd be at least five years before the Supreme Court would revisit the issue. Instead, it has been only two years -- lightning speed for the judiciary on any such politically contentious issue.
But no matter the intervening gap, it's pretty easy to see what's going to happen in Obergefell. John Roberts can now act in a much more bold fashion, secure in the knowledge that the court will only be changing laws in a small number of states. Of course the Supreme Court is supposed to be all about the law, and never about politics, blah, blah, blah. But this is simply not reality, and probably never was. Justices know that there are real-world implications from what they decide, and this is most important to the Chief Justice, since his name is on the court (e.g., the "Roberts court" or the "Warren court").
This is why I predict a 6-3 victory for marriage equality. Not only will the "swing vote" (Anthony Kennedy) side with the liberals on the bench, but Roberts himself -- mindful of being seen "on the right side of history" -- will also somehow find a way to proclaim a constitutional right for same-sex couples to be married. This may generate a political backlash, but the legal question of marriage equality will be completely settled forevermore.
King v. Burwell
This case may determine the ultimate fate of the Patient Protection and Affordable Care Act, a.k.a. "Obamacare." The case hinges on a typo, in essence. On one page of the law, the language refers to only "the state" when discussing who is eligible for subsidies for health insurance bought on the exchanges set up for that purpose. It didn't also say "or the federal government's exchange," in other words.
Even one Republican on the drafting committee for the law has publicly stated that this was nothing more than a typo or oversight in the language being drafted. It was not intentional -- it was never supposed to be a way to punish states who didn't set up their own exchanges.
So the Supreme Court has two easy ways to rule on the case. They could either say "the letter of the law is the law, period," and by doing so put in jeopardy subsidies for over six million American families, or they could say "when you read the entirety of the law, it is obvious and clear that this is nothing more than a typo," thereby upholding the subsidies and keeping Obamacare intact. These are going to be the main arguments both for and against the decision, whatever it turns out to be. It all depends on how many votes each one of those arguments will get.
There is plenty of precedent for both arguments. There are too many cases to even bother citing where the court ruled that the overall intent of the law is the determining factor, not one badly-worded phrase. Many of these decisions were quite conservative in nature, in fact (the liberal side lost the case, to put it another way). So any of the justices could come up with a rationalization for voting either way, really.
Since there are two clear legal paths for them to follow, I have to assume that politics will play an enormous role in which way each individual justice votes. This may sound pessimistic to some readers, but I prefer to see it more as accepting the reality of the situation.
All is not lost, however, by admitting this. As with many cases, it likely means there are four solid votes in favor of preserving Obamacare subsidies for all, and three solid votes against. Kennedy and Roberts are the two unknowns.
But, once again, I'm taking an optimistic view. I think that there's a strong possibility that Kennedy will vote with the conservatives, but I also think that John Roberts is going to surprise a whole bunch of people by becoming the deciding vote in favor of upholding the subsidies. Roberts has already had one chance to disembowel Obamacare, and -- importantly -- he chose not to take it. The legal reasoning he had to use to justify this was pretty strained, in the earlier National Federation of Independent Business v. Sebelius case. In King, however, he can use very straightforward reasoning that has plenty of legal precedent behind it, which will only make it easier for Roberts to side with upholding Obamacare.
Roberts knows that if he guts Obamacare, his court will long be remembered for dismantling a president's signature political agenda item. History has not been kind to Supreme Courts who have done so, for the most part, because it is seen as so nakedly political.
If Roberts were an actual ideologue bent on overturning Obama's signature law, then why didn't he do so already? The earlier case would have completely obliterated Obamacare, and yet Roberts chose not to do so. This is why I am optimistically predicting he will, once again, choose not to do so. Roberts knows the legal reasoning behind the challenge to Obamacare is weak. In fact, it would overturn a long list of precedents and set a new standard that will be very hard to justify in other (less political) cases.
So my prediction for King v. Burwell is that the court will rule 5-4 in favor of interpreting the law as being equal for all U.S. citizens, no matter what state they may reside in. I could even see this one going 6-3 as well, but have a sneaking suspicion that Kennedy will vote with the conservatives on this one. The court has already declined once to kill off Obamacare by judicial fiat, and I don't think it's going to do so on King either. Of course, I could always be wrong, so we'll just have to wait a few weeks to see what SCOTUS actually does decide. For now, I remain cautiously (and, perhaps, foolishly) optimistic.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant