Kennedy is Skeptical, Roberts is Mum: What We Know About Today's Arguments in the Supreme Court's Obamacare Subsidies Case

The High Court may be leaning toward the administration's position on the health law case.


credit: Jeff Kubina / Foter / CC BY-SA

Oral arguments in King v. Burwell, which challenges the Obama administration's decision to allow insurance subsidies in federally run exchanges, ended just a few minutes ago.

No electronic devices were allowed inside the courtroom, but several outlets, including The Wall Street Journal and SCOTUSBlog, used tag-team reporting to file updates as the arguments were happening.

Here are a few highlights so far:

Standing probably won't be a problem. It looks like the questions about the plaintiffs' standing—whether they were actually legally qualified to take the issue to court—which had been raised in news reports over the last month won't be an issue: While Justice Ruth Bader Ginsburg asked about standing almost immediately, Solicitor General Donald Verrilli did not challenge statements by Chief Justice John Roberts and Justice Samuel Alito that this wasn't the time to dispute standing, according to SCOTUSblog.

Kennedy appears skeptical of the challengers' argument. According to The Wall Street Journal, Justice Anthony Kennedy, who previously voted to strike down Obamacare's individual mandate as unconstitutional, said he worried about "a serious constitutional problem" inherent in the challengers' argument that Congress would require states to either establish their own exchanges or not get access to tax credits. SCOTUSblogged summarized Kennedy's remark this way: "Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion."

As I noted earlier today, the idea that the subsidies, the insurance rules, and the mandate are closely linked took up a significant part of the government's brief. I don't think it holds up, but based on initial reports, Justice Kennedy appeared potentially sympathetic to this argument.

(Update: On the other hand, it may be that Kennedy accepts that there would be policy consequences, and doesn't think those consequences have any legal weight: According to TPM's Sahil Kapur, Kennedy also said to the plaintiff's lawyer: "It may well be that you're correct about these words and there is nothing we can do about that.")

Chief Justice John Roberts kept his opinions to himself. Justice Roberts, who many believed might be the swing vote in this closely watched case, said rather little, and provided no hints as to his opinion of the case.

At this point it's too early to reach any strong conclusions, but the reports so far suggest that the Supreme Court is less focused on the specific language of the law and more focused on the general structure, which suggests that they may be leaning toward the government's position. Justice Kennedy's skepticism was probably the biggest sign as to which direction the court is leaning overall: If Kennedy sides against the challengers, it's virtually certain that the government will win.

Reason's Damon Root was at the court today and will be posting his impressions soon, so check back for more coverage throughout the day.