Late Tuesday night, after binge-watching as many episodes of “House of Cards” as time permitted, I hastily grabbed a blanket and as many pieces of warm clothes as I could, and I headed to the Supreme Court. I arrived just before midnight and took my place in line outside the Supreme Court building behind a couple dozen placeholders, a handful of concerned citizens, my coworker, and her boyfriend. We were all gathered there with the hope of getting a seat in the courtroom for the oral arguments of King v. Burwell, the case before the Supreme Court that could ultimately decide whether an estimated 7.5 million people across 34 states will continue to be able to afford health insurance from the tax credits they currently receive through the federal health insurance exchanges set up by the Affordable Care Act.
Throughout the night, everyone in line concerned with the case discussed the arguments and the potential outcomes of the case, except for the couple dozen placeholders who were saving spots in line just with the hopes of getting paid for them the following morning. Early in the night we relaxed and enjoyed the picturesque surroundings, especially the Capitol Building, covered in scaffolding, which sat illuminated directly across the street from us. As it got later into the night, temperatures dropped, and freezing rain started to fall. A small group of us huddled together under a tarp to avoid getting soaked, and continued to discuss previous cases and what to expect in the arguments we were about to see.
Around 5 a.m., a crowd of well-dressed people who were much dryer than us took their place behind us in line along with several news crews. Not long after, activists arrived along with the people who were willing to pay hundreds of dollars for one of the spots that had been saved by the several dozen placeholders. Tickets were handed out soon after, and those who were lucky enough to get a ticket entered the building.
After waiting in a corridor for nearly an hour, upon entering the building, it was finally time for us to enter the courtroom. While going through the second security checkpoint we were passed by Rep. Paul Ryan along with several GOP Senators. Upon entering the courtroom, we were ushered to the final row in the back of the room where we watched House Minority Leader Nancy Pelosi and numerous other Congressman and Senators embrace each other just a couple rows ahead of us. After everyone settled in and a brief prelude to the proceedings was given, it was finally time for the arguments to begin.
The justices entered the room and called upon lawyer Michael A. Carvin to present the plaintiff’s argument challenging the statutory construct of the ACA, and whether providing tax credits through the federal health insurance exchanges was what Congress had intended when writing the law. His argument was based on section 1311 of the law, which explains that credits would be available only through “exchanges established by the state.” Carvin’s argument, as expected, was ill-received by the liberal justices, Kagan, Sotomayor, Ginsburg, and Breyer. Each of whom spent time refuting the argument that Congress intended to create a law that would limit the availability of tax credits to only states that had established their own exchanges.
The liberal justices made the argument that the statute should be interpreted as a whole with the aim of making everything harmonious with everything else. This was expected, and as a result their comments were not telling as to which way the decision will go. However, the most interesting and potentially telling comments came from Justice Kennedy, who seemed concerned with the challenger’s arguments and their effect on American federalism as we know it. Kennedy characterized Carvin’s argument as telling states to “create your own exchange, or we’ll send your insurance market into a death spiral.” Kennedy also noted “there’s a serious constitutional problem if we adopt your argument.”
After Carvin presented the challenging argument, Solicitor General Donald B. Verilli Jr., representing the Obama administration, made the case for interpreting the ACA as it is currently interpreted, which would ensure the continued availability of tax credits through the federal health insurance exchanges. As expected Justice Scalia and Justice Alito actively argued against Verilli’s argument that section 1311 of the ACA should be read in conjunction with section 1321, which allows for the federal government to set up and operate exchanges if states decline to establish their own exchanges. Both justices bought in heavily to the idea that the wording of section 1311 of the statute precluded section 1321 from allowing for the establishment of federal exchanges. While Scalia and Alito argued with Verilli, Justice Thomas was characteristically quiet, mostly just reclining in his chair and occasionally staring at the ceiling.
Chief Justice Roberts was uncharacteristically quiet during both arguments and did not ask any questions that gave a clear glimpse of his opinion. Despite his seemingly negative opinion of Carvin’s argument, Justice Kennedy also took issue with a portion of Verilli’s argument and the fact that the IRS created the provision in section 1321 of the statute that allows for the creation of federal exchanges. Kennedy stated, “It seems to me a drastic step for us to say that the department of internal revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here?”
Although Kennedy voted against the constitutionality of the ACA in the first Obamacare Supreme Court case, he may likely be the deciding vote this time around that keeps Obamacare from being gutted. However, his comments during both arguments made it unclear which way he could ultimately vote. Chief Justice Roberts wrote the opinion saving Obamacare in the 2012 decision, but it was difficult to discern his thinking this time around, as he was uncharacteristically quiet throughout the proceedings, asking no questions that gave a clear glimpse of his opinion. It may very well be the case that either he or Justice Kennedy could cast the deciding vote that determines the outcome of the case. However, it was difficult to tell how the case will unfold as the opinions of the two main deciding votes were ambiguous. This case seems to be clearly divided, without any clear indication of which way the vote will go. However, the vote will undoubtedly be close, and politically divided. Ultimately, only time will tell which way the vote goes. But in the mean time, we’ll be left to wonder how a four-word phrase in a nearly one thousand page statute could potentially affect the well-being of millions of Americans.
Photo: Kate Bass/Project Vote