Arguments in the case of King v. Burwell helped serve to shine light on just how big of a mess implementing, changing, scuttling, or rebuilding the ACA will be.

From Bloomberg:

It wasn’t immediately clear where the court leaned, as Chief Justice John Roberts — who voted in 2012 to uphold the law as constitutional — asked few questions during the hearing Wednesday. A ruling is expected by late June.

Alito’s suggestion that the court might set an end-of-the-year termination date for subsidies in states was greeted somewhat favorably by solicitor general Donald Verilli, who represented the Obama administration.

“That would reduce the disruption,” he told Alito. Still, he said it was “completely unrealistic” to expect that states that lack their own exchange could build one by the end of the year. Under current regulations, for example, states must win approval from the health department by May for an exchange that would open for business in October.

Justice Antonin Scalia, another Republican appointee, said that Congress could act to solve the problem. Republicans in both the Senate and House have said that they would respond to a court ruling against the government with legislation to preserve insurance coverage, but they don’t agree on a solution.

“Well, this Congress, your honor?” Verilli said, to laughter. “Theoretically, they could.”

One does not joke before the Supreme Court unless one is absolutely positive that the bench will join in the fun.

Everyone laughed.

So, who comes out on top? Both crowd sourced opinions (via FantasySCOTUS) and the {Marshall}+ algorithm-based predictions are coming up blank:


The wisdom of the crowd foresees a 5-4 reversal as of this writing — which would be a decision against the ACA — with Chief Justice John Roberts sitting on the fence and Justice Anthony Kennedy not far away. Roberts was, of course, the surprise savior of the law in 2012. (The crowd predictions may improve after participants have had a chance to digest the oral argument transcript, taking clues from justices’ questions.)

The {Marshall}+ algorithm isn’t quite sure what to make of all this. It sees a similar pattern — the liberal justices more likely to affirm and the conservative justices more likely to reverse — but many of the justices are more or less a coin flip. Josh Blackman, one of the {Marshall}+ creators, told me: “These numbers remind me a lot of the crowd predictions from the first Obamacare case in 2012. The numbers were too close too call, and we were not able to get any statistical significance. This proved to be surprisingly accurate, as the court itself (the chief justice in particular) hadn’t made up its mind of how to rule. This case will be close.”

Invoking 2012 isn’t exactly what conservatives want to hear at this point.

Eric Citron at SCOTUSblog brings up an important point about how the oral arguments played out. For all the back and forth that went on during the arguments (listen to them—it got brutal), the questions and answers given seemed to pit literalism vs. contextualism. Arguments challenging the ACA focused greatly on the text of the statute, but questions from Justice Kagan revealed her willingness to defer to context. Justice Kennedy spent a great deal of time picking through the idea of reading a statute in a way that “puts a gun to the head” of the States and thus jeopardizes state-level police power. He did, however, accept the conclusion that if the Court chooses to adopt the challengers’ argument, that there would in turn be a major Constitutional problem to deal with.

Maybe he’ll steer into the skid. Maybe he won’t. You never know with Kennedy.

Chief Justice John Roberts asked no questions of the petitioners, possibly because he had none, or possibly because he knew that the entire country was waiting for him to signal his position one way or another. Roberts’ opinion back in 2012 saved Obamacare from a major Supreme Court challenge, and I think it’s reasonable to assume that he may want to keep his hand a secret for now.

Who wins? I have no idea. In 2012, I thought that Roberts would reluctantly side with the conservative wing of the Court, and we all know how that panned out. I’ve listened to these arguments multiple times now, and all I know is that hearing 85 minutes of constant Q&A from both sides of the bench makes me hopeful that there is a swing vote in play.

You can listen to the full oral argument here, and read the full transcript here.