The Supreme Court’s Surprise that Wasn’t

Those watching the U.S. Supreme Court process on the King v. Burwell suit that almost upended insurance subsidies for about 6.4 million Americans knew that three outcomes were possible – 5-4 for the plaintiffs, and 5-4 or 6-3 for the government. That indicated to me a two-thirds probability of a pro-Affordable Care Act ruling.

carygrantIntellectually, that’s what I expected. Too many long-standing and widely-shared judicial precedents would have been trampled by a ruling for the Libertarian/Cato Institute’s lawsuit – including the core Chevron principle that “context matters,” and the Pennhurst principle that federal laws shall not “surprise states,” among others. With a ruling the plaintiffs, the Court’s only way out would be to repeat the 2000 scandalous ruling in Bush v. Gore that the Court’s decision installing George W. Bush as President would represent no precedent for any future case.

Still, it would have been foolhardy to assume any certain result from this Supreme Court. Happily, the decision was not close. The window of opportunity for using the Supreme Court to disassemble the ACA is now all but ended, even as a baker’s dozen of cases are still in circulation. Continue reading “The Supreme Court’s Surprise that Wasn’t”