In the months leading up to the first Supreme Court Obamacare decision, there was a concerted media and Democratic effort to portray the legitimacy of the Court, and particularly the legacy of Chief Justice John Roberts, as dependent on the outcome.

The argument went that holding Obamacare’s mandate to be unconstitutional would be such a huge interference in the political process that the Court would lose its supposed role as neutral referee and become a political player. Because as we all know, that has never happened before (/sarc), see, Roe v. Wade, etc.

This pressure reportedly caused Roberts to change his vote, and to join with the for liberal members of the Court in finding the mandate justified under Congress’ taxing power.

Now the media pressure is mounting on Obamacare II, the subsidy case the Court accepted this term. The issue is whether the statutory language of Obamacare permits subsidies (the only way Obamacare policies are affordable for most) on the federal exchange set up when most states refused.

This issue of statutory interpretation is not exceptional legally, except that the political stakes are so high. If the statute is read not to permit the subsidies, Obamacare likely crumbles of its own weight.

Enter Linda Greenhouse, Supreme Court and judicial reporter for The NY Times, with scare mongering about the legitimacy of the Court, The Supreme Court at Stake: Overturning Obamacare Would Change the Nature of the Supreme Court:

In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.

The court very nearly got the answer wrong with an exceedingly narrow reading of Congress’s commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congress’s tax power….

But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.

Oh please. This is pure hyperventilation. The statute says what it says. Democrats drafted it, but now apparently claim it was all a drafting error or the words don’t mean what they say.

Except the words say subsidies only are for state exchanges.

Just like the architect of the law, Jonathan Gruber, said:

If it were any other case but one involving Obamacare, no one would care from a legal perspective.

Bryan recently addressed this issue, SCOTUS “institutional legitimacy” not at stake in King v. Burwell.

Greenhouse gives away the game later in her column:

… A defeat for the government — for the public at large, in my opinion — seemed all but inevitable.

While I’m still plenty disturbed by the court’s action, I’m disturbed as well by the defeatism that pervades the progressive community…


What is at stake is the legitimacy of the progressive vision, forced on an unwilling population through a piece of legislation which says what it says.

To be bullied again would do the real harm to the Supreme Court.

UPDATE: Like clockwork, Steve Benen joins the chorus (h/t Joshua McCloud Twitter), When the integrity of the Supreme Court is on the line:

All that matters, according to the plaintiffs’ argument, is imposing health care chaos. If that means trashing American jurisprudence, then that’s exactly what the justices must do.

With this in mind, the ruling in King v. Burwell will have sweeping consequences in the lives of tens millions of people, but it’s not just health security at stake. The integrity of the Supreme Court itself is on the line.

[Note: The Title of this post was changed substituting the word “working” for “gaming,” which seems to make more sense in context.]


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