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And Please Let the Door Hit You on the Way Out

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One very clear implication of Roberts’s surprisingly forceful rejection of ACA trooferism was that a majority of the Supreme Court was uninterested in having any further frivolous lawsuits rise up from the fever swamps. The lower courts appear to have gotten the message:

On Friday, however, four Republican federal appeals court judges, including at least one of the most conservative judges in the country, laid that threat to rest in an opinion signaling that federal courts will no longer give comfort to lawyers seeking to wipe out Obamacare.

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This is an important development not just because it suggests that this lawsuit is unlikely to prevail, but because of the identity of some of the judges who decided not to pick this fight. One judge who joined Judge Kavanaugh’s opinion is Judge Thomas Griffith, the author of a divided three-judge panel’s decision in Halbig v. Burwell, which embraced the same legal arguments presented by the plaintiffs in King. These arguments were just as weak as the arguments presented by Sissel’s attorneys — King and Halbig rested on the unique legal argument that much of the text of the Affordable Care Act does not count. So Griffith’s willingness to sign onto Kavanaugh’s opinion suggests that Griffith’s tolerance for extravagant challenges to Obamacare has waned since he handed down his opinion in Halbig.

Another judge who joined Kavanaugh’s opinion was Judge Janice Rogers Brown a staunch economic libertarian who once argued that courts should treat all labor or business regulation with a great deal of constitutional skepticism. Brown labeled the New Deal a “socialist revolution,” and claimed that Social Security is a kind of intergenerational cannibalism (“Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract”). So if any judge in the country would be sympathetic to an attack on Obamacare, it is Janice Rogers Brown.

There comes a time when it’s time to pack up your crusade to use litigation to strip millions of people of their health insurance and go home. Janice Rogers Brown finding your arguments too weak to proceed is, in fact, that time.

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