For King v. Burwell Day
By I have an explainer about the case up at Gawker. (Immense credit to them for the awesome graphic at the top.) For the record, without benefit of oral argument I remained a pessimist:
To oversimplify, the political science literature on judicial behavior suggests that the votes of Supreme Court justices in politically controversial cases tend to be largely determined by the policy views of the justices. When it comes to predicting close cases, however, that “largely” can be confounding, since the justices with the median votes in a given case tend to have the least predictable views. Assuming that all of the Democratic nominees would have voted for the ACA and all of the Republican nominees would have voted against it if they were members of Congress, the “attitudinal model” got 8 of the 9 votes in the last ACA case right–and Pete Carroll was having a great postseason until his last offensive play.
As Ian Millhiser explains, the majority of the Court’s votes can be predicted with near-absolute certainty: the four Democratic nominees will vote with the government, and Justice Alito is “more likely to be struck by lightning while committing in-person voter fraud” than to vote to uphold the IRS regulation. I would put Thomas and Scalia in the latter group as well, and given Kennedy’s hostility to the ACA he’s only marginally more likely to side with the government.
So this case essentially comes down to the Chief Justice. If I was one of those compulsive types who just has to bet, I would say that Roberts is more likely than not to side with the troofers. If you bet that justices will follow their political views, you won’t always be right but the odds are in your favor. But that’s really just a guess, since his vote will depend on factors – how strongly he substantively he opposes the ACA, how he perceives how a particular decision will affect the legacy of his Court, etc. – that are unknowable to outsiders.
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If you want to allow yourself any optimism about how Roberts will vote, the horrible consequences of the Court siding with the challengers could be a factor. Republicans, certainly, are going out of their way to reassure the Court that denying the subsidies to federally established exchanges is no big deal. The funniest and most pathetic example of this was seen earlier this week, as House Republicans demanded that Health and Human Services Secretary Sylvia Burwell explain her top-secret plan to magically stop all of the bad effects should the latest Republican challenge to the ACA succeed. In related news, House Republicans plan to steal Burwell’s car and then demand to know her strategy for getting them off if they crash it into a school bus after a 7-martini lunch.
Initial reports from oral arguments suggest that I may have been a tad too pessimistic; in particular, the federalism argument seemed to have substantial appeal to Kennedy. I’ll have more when I have a chance to read the transcript.