The Supreme Court's opinion authored by Chief Justice John Roberts in the King v. Burwell case was classic conservative judicial philosophy, argues the Daily Beast's Jay Michaelson.
"Today, the Supreme Court voted not to kill Obamacare because of a typo," Michaelson began his piece.
Right off the bat, of course, he's shading his article with a misleading statement. After all, ObamaCare architect Jonathan Gruber readily admitted in 2012 that the text of the Affordable Care Act (ACA) was designed to prod states to do the heavy-lifting for the federal government by designing and operating state-based healthcare exchanges by denying subsidies for taxpayers in states that didn't.
In petitioning the Supreme Court to take their case, the plaintiffs quoted Gruber, who said in 2012: "[I]f you're a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.”
More precisely, it ruled, 6-3, that the Affordable Care Act wasn’t meant to kill itself: that a seemingly innocuous phrase (“established by the state”) should not lead to the implosion of the entire health care system, and thus should be read in context, rather than purely literalistically.
Thus, while media coverage is already calling this a “victory for the Obama administration,” it really is a victory for sensible statutory construction. Which is why the case was 6-3, and the opinion was written by Chief Justice Roberts.
First, let’s remember that in other courts, this case might never have even made it to the Supreme Court in the first place. It began as an enterprising attempt by an obscure conservative policy wonk to poke holes in Obamacare, and the phrase at issue was recently revealed to be a drafting error, cut and pasted from an earlier version.
So, while some may see the Chief Justice’s legacy as twice saving Obamacare, one could just as easily see it as twice saving the Supreme Court.
Second, and more interestingly, the King v. Burwell opinion is what real judicial conservatism—as opposed to ideological, political conservatism—looks like.
Notice how Michaelson says the consideration in play with the Burwell case must be the possible "implosion of the health care system" rather than the Court simply narrowly considering what in fact the text of the law directs to be done. Conservative judicial philosophy would dictate that courts are not and should not be concerned with preserving grand, sweeping policy visions of any political faction but rather in seeing that the law is properly interpreted, regardless of how that interpretation might practically impact the execution of an ideological pet project.
If in fact the ACA simply does NOT authorize subsidies in states which are run by a federally-administered exchange, then a conservative result would be to rule accordingly and let the legislature go back to the drawing board to fix the deficiencies in the law's text which brought about the problem. Separation of powers, an eminently conservative tenet, requires that the courts refuse to practice a legislative prerogative by essentially performing a fix from the bench.
What's more, if "sensible statutory construction" involves a Court reading "context" in such a way as to override clearly-stated, clearly-defined statutory language, it gives license to courts to do all manner of statutory rewrites from the bench. That's hardly a conservative tenet, no matter how much Michaelson insists it is.
In closing, Michaelson makes one last pitch for his thesis:
This decision is only “liberal” in the best way: It is part of the functioning of a small-“l” liberal democracy, subordinating one’s personal political opinions to an institution’s role in civil society. For that reason, it is conservative in the best way, as well.
But isn't it substituting "one's personal political opinions" to insist that the Court must follow the Obama administration's self-interested and quite tortured interpretation of the plain text of the ACA rather than ruling in a way which upholds the plain meaning of the law's actual language and leaves remedy thereof up to the political branches, that is by having Congress pass corrective legislation and the president signing it into law?