Clues to Chief Justice John Roberts' thinking on new ObamaCare case

| Saturday, Nov. 22, 2014, 9:00 p.m.

The Supreme Court's surprising decision to hear a new challenge to the Affordable Care Act once again has focused attention on Chief Justice John Roberts, who cast the deciding vote in a 2012 decision that saved ObamaCare from being declared unconstitutional.

Many court watchers expect that he will once again be the swing vote in deciding a case crucial to the health-care law, this one involving questions about who qualifies for subsidies under the law. But Roberts' vote in a recent voting rights case suggests he might not step in to save the health law this time.

At issue in King vs. Burwell is a provision of the Affordable Care Act that authorizes subsidies in the form of tax credits for qualifying individuals who buy their insurance from exchanges “established by the state.” But 34 states did not set up their own health-care exchanges, opting instead, as the law allows, to send state residents to a federal exchange to buy insurance.

The challengers argue that because this exchange was not created by a state — but rather by the federal government — people obtaining insurance through it are not entitled to subsidies.

It seems entirely possible that Roberts might focus narrowly this time on the snippet of the act extending subsidies only to those insured by exchanges “established by the state.” One argument he might make in defense of that position is that Congress has the ability to go back and fix any unclear language through a revised statute.

Roberts telegraphed his willingness to take such an approach in the 2013 Shelby County vs. Holder case, which struck down a key provision of the Voting Rights Act. The provision the high court declared unconstitutional defined which states had to get federal approval (or pre-clearance) before making changes to their voting laws. Roberts' opinion for the majority ordered the provision struck because it was based on old data. Congress, he reasoned, could simply update the formula to respond to “current conditions” if it wished to.

When Roberts wrote his Shelby County opinion, he knew full well that Congress would not update the coverage formula. Congress is polarized and the issue was a political hot potato. Indeed, in the period since the opinion, a bill introduced to update the Voting Rights Act has gone nowhere.

Although Congress used to come forward on a bipartisan basis to change laws in response to Supreme Court rulings, the number of such overrides has fallen to a trickle. From 1975 to 1990, Congress overrode an average of 12 Supreme Court decisions in each two-year congressional cycle.

In the last decade, that number has fallen to 2.7 every two years and there have been no significant overrides during the Obama presidency since Republicans took over the House of Representatives. During the last two years, overrides have been even rarer.

Even if Congress were to come together in a bipartisan way to override some statutory interpretations of the Supreme Court, there is no way it is going to override the Supreme Court on ObamaCare. The House has voted dozens of times to repeal the health-care law in its entirety; there is little chance it would step in now to save a law its members have so long maligned.

Roberts can point to many past cases in which court decisions have initiated a “dialogue” with Congress, which then stepped in with legislation to correct what it saw as errors in the court's interpretation of congressional statutes.

In today's fraught political environment, court-Congress dialogues are not generally possible. But that might not stop Roberts from citing the possibility of such a dialogue — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.

Richard L. Hasen is a professor of law and politics at the University of California, Irvine School of Law.

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