Roberts might not want to stick with the rest of these guys on this one.
Sen. Mitch McConnell's
truth-telling about the ability of the U.S. Supreme Court to destroy Obamacare even if Congress can't repeal it was basically the first honest admission by a Republican that they view the court as what it has pretty much become: a political arm of their party. That puts the court, and in particular Chief Justice John Roberts, in a bit of a political pickle: will they so blatantly side with the right on what is clearly a purely political case, and break their own precedent to do so?
It also puts them in a juridical bind, Brian Beutler argues.
Chief John Roberts, for instance, has a penchant for making naive political arguments—about racism, or money in politics—to support controversial decisions. But he can’t now, in good faith, argue that Congress will clean up the mess if his Court voids subsidies in Healthcare.gov states. He could decide that the isolated phrase "Exchange established by the State" means what it says, and, while plainly a mistake, it’s not the Court’s job to fix drafting errors. But he can’t pretend not to know that Congress has no intention of fixing it either.
That McConnell's now publicly announcing he'll use a ruling along those lines as an "opportunity presented to us by the Supreme Court" for a "major do over" should at least make Roberts uncomfortable. The question, then, is how much does he care?
That's exactly the question. Because if he joins with the other four conservatives who are surely going to rule for the plaintiffs, he'll be responsible for taking health insurance away from millions of people. There's no question now of Congress actually amending the law, of making the technical correction to the problematic wording or coming up with any other fix. Even were some Republicans to come to the realization that millions of people who would lose their insurance are going to be very, very unhappy, there won't be enough of them salvage the law.
So this one is pretty much entirely on Roberts' head. But, as Beutler points out, he's got an easy out. "All it takes is not buying the tendentious argument that the challengers have identified the only plausible construction of the ACA. And most of the federal judges who’ve looked at this case have somehow managed to avoid this temptation."
