I’ll have several posts this week on the work of the Court. Let me start by addressing King v. Burwell.
The debate over the Affordable Care Act is now closed. Sure, some people will make noises next year about repealing the law, but that’s not going to happen. As Justice Scalia suggested in his dissent, the ACA will probably attain the status of the Social Security Act or the Taft-Hartley Act (the latter is an interesting choice–more on that another time.) I’ll leave the discussion of the opinions themselves to people who are more expert on statutory construction.
I do have one thought to offer about Chief Justice Roberts’s role in saving the ACA. In 2005, Justice O’Connor retired and John Roberts was nominated as her successor. While that nomination was pending, Chief Justice Rehnquist died and Roberts was nominated as the Chief. I wonder if that was a fateful choice. Would Associate Justice Roberts have voted the same way in Sebelius? Associate Justices get a sort of herd immunity if they do not write the Court’s opinion. They do not bear the same institutional burdens as the Chief Justice. Now maybe any Chief Justice fill-in-the-blank nominated by President Bush would have felt the same pull to not strike down the ACA by a 5-4 vote, but that is hard to know. Hopefully, I’ll live long enough to see the papers on the internal deliberations in Sebelius opened for scrutiny.