Hell Hath No Fury Like An ACA Opponent Scorned

By Gregory M. Lipper

Over the weekend, Ted Cruz again lamented the role played by John Roberts in rejecting the plaintiffs’ arguments in King v. Burwell, the recent attempts to undermine the Affordable Care Act in the Supreme Court. After Chief Justice Roberts wrote the Supreme Court’s 6–3 opinion in the case, the emerging narrative in some conservative circles is that Roberts and his (apparently illegitimate) judicial restraint is to blame. Cruz said that “if [Edith] Jones and [Michael] Luttig had been on the court instead of Souter and Roberts, then the marriage laws in every state would still be on the books and Obamacare would not been law.” Apparently, the same Chief Justice who invalidated a key provision of the Voting Rights Act, went out of his way to reach the First Amendment question in Citizens United, and joined aggressive decisions targeting contraceptive coverage and labor unions is actually a passive Obama apologist who should never have been nominated.

That, I suppose, is one lesson to be learned. Another is that the King lawsuit was so obviously frivolous and nakedly political that even arch-conservative and Affordable Care Act skeptic John Roberts felt constrained to reject it.

Let’s review: in King v. Burwell, the plaintiffs argued that four words in the Affordable Care Act should be read in isolation to prevent the federal government from offering subsidies to those who lived in states that refused to create their own healthcare exchanges. They pressed this argument even though such a reading would have rendered the federal exchanges entirely illusory, stripped millions of Americans of health insurance, and produced the very death spiral the Act was supposed to prevent.

Commentators noted that the plaintiffs’ argument was reminiscent of “an old Amelia Bedelia story” and that it depended on the “Moops doctrine.” And those were the nice reviews. Others described the case as “cynically manufactured,” “mean-spirited,” and a “political challenge … dressed up in legal garb.” The plaintiffs’ counsel didn’t help matters by speaking about the companion case in rather political terms.

So it’s not surprising that the Court rejected the plaintiffs’ arguments; it would have been bizarre if they had been accepted. But in acts of gymnastics worthy of the “unskewed polls” movement, those who supported the King lawsuit claim that the problem is not their legal arguments but rather judicial restraint itself:

• Randy Barnett, mastermind of the earlier challenge to the ACA’s individual mandate, complains that “selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed in NFIB and King”;

• In a Weekly Standard cover story, Barnett and Josh Blackman denounce the judicial restraint that led the Chief Justice to (more or less) uphold the Affordable Care Act in 2012;

• At Reason, Damon Root says that the John Roberts confirmation hearing “was a clear warning sign of the judicial abdication to come”; and

• Cato’s Ilya Shaprio posits that the decision in King “combined two unholy strains of judicial agency: liberal activism and conservative pacifism”—adding that conservatives should have been suspicious from the start because Roberts “attended the conservative Federalist Society meetings but has said he was never a member.”

There may be a virtue in bold Supreme Court nominees with paper trails, a willingness to make unpopular decisions, and the gumption to subject government arguments to meaningful scrutiny. But a nominee willing to accept the plaintiffs’ arguments in King is a nominee who should not be confirmed. The lesson of King is not that we should nominate judges who are more willing to accept frivolous legal arguments in order to undermine the Affordable Care Act; it’s that political lawsuits unaccompanied by sound legal arguments do not belong in court.

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.