What would Chief Justice John Roberts do?
Michael Carvin, the lawyer for the plaintiffs in the
Halbig v. Burwell case, thinks
he's got the Supreme Court on his side, even if every district and appellate court upholds the law. The
Halbig challenge is premised on the flimsy proposition that Congress did not intend for people who signed up for Affordable Care Act on the federal health insurance exchange to receive the tax credits that make the insurance affordable. The law has been upheld so far by two federal trial court judges and one appeals court, the Fourth Circuit in the similar
King v. Burwell case.
A three-judge panel on the D.C. Circuit did rule with Carvin in June, but that decision was set aside and the the full, eleven-member of the court is going to rehear the case. That en banc court will include eight judges appointed by Democrats, including four appointed by Obama. But Carvin still thinks he'll win, because he's got at least four Supreme Court Justices on his side. It will take four to decide if they'll hear an appeal. Most legal analysts are looking to SCOTUS precedent and believe that the Court is less likely to take the case when the lower courts—the D.C. Circuit and the Fourth, in this case—are in agreement. Carvin doesn't think so.
"I don't know that four justices, who are needed to [take the case] here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think," Carvin told TPM on Thursday, after a Heritage Foundation event previewing the upcoming Supreme Court term. "This is a hugely important case." […]
"There's plenty of cases where [Supreme Court justices] take important issues even if there's no circuit split—like the gay marriage cases, they might take those," Carvin said. "If you've gone through that process and you don't really care what [the Obama-appointed judges] think—because I'm not going to lose any Republican-appointed judges' votes on the en banc—then I think the calculus would be, well let's take it now and get it resolved." […]
Asked if he believes he'd lose the votes of any of the five conservative justices, he smiled and said, "Oh, I don't think so."
There's not even any pretense any more that the Roberts Court isn't crassly political, that reversing "a bunch of Obama appointees" is more important to those five justices than, you know, the law. That might be a bit of a miscalculation on Carvin's part, though, particularly regarding Roberts himself. Remember the surprise he gave conservatives
back in 2012, when he upheld the law?