Barry Friedman and Dahlia Lithwick aren’t so sure:
[I]t is possible everyone has their political calculus wrong with regards to the Chief Justice, just as we did the first time the Supreme Court looked at the ACA. Roberts, according to all accounts, did a last-minute 180 on Obamacare in 2012. We may never know why, but it seems likely it had something to do with preventing a backlash against the court. While such a backlash is less likely now—especially given the just-completed midterms that gave Republicans control of the whole Congress—Roberts is savvy enough to know how a ruling against the federal government in this case could be perceived. In a recent speech to the University of Nebraska College of Law, Roberts said that he didn’t want Americans to start to view the Supreme Court as a “political entity.” “I worry about people having that perception, because it’s not an accurate one about how we do our work. It’s important for us to make that as clear as we can to the public.” A 5-4 anti-Obamacare vote in King v. Burwell would accomplish the exact opposite: Eliminating the federal government’s subsidies, when there is such widespread agreement that Congress never, ever intended such a thing, would look like nothing but a political swipe.
I’m staggered that the Justices took the case. I tend to agree with Simon Malloy that a partisan SCOTUS ruling that struck down the heart of the Affordable Care Act on a technicality/typo would invite the greatest mobilization of liberal voters since 2008. But that might not stop the Court anyway. Noah Feldman suspects that, if SCOTUS “announces a fundamental constitutional right to marry, its liberal legacy will be so prominent that Roberts may have reason that he can kill Obamacare without tarnishing the court’s reputation too much”:
Imagine that, in the space of a few days at the end of June, the court decides a landmark case in favor of gay rights and then says that the IRS can’t give subsidies to citizens of states that have created their own health-insurance exchanges: What liberal critic would be able to say with a straight face that this was the most conservative activist court in history? The court would be activist, all right, but it would appear almost evenhandedly so.
Beutler lists off reasons Roberts may side with the government. Among them:
Chief Justice John Roberts himself is a business friendly justice. The Chamber of Commerce basically bats 1.000 with him. An adverse ruling would cause immense harm to powerful corporate interests like private insurance companies, hospitals, and other stakeholders, all of whom oppose the challenge.
Bill Gardner, on the other hand, bets that Roberts will agree with the challengers:
The constitutional outcome of a victory for the King plaintiffs would be a radically decentralized federalism. It would mean that increasing access to health care through the ACA would require political validation at the state as well as the federal level. This outcome would be consistent with the constitutional philosophy that Roberts and many other conservatives espouse. For this reason, if no other, I expect Roberts to vote for the King plaintiffs.
If it were based on a “typo”, why would Jonathan Gruber publicly state that the intention of that language was to force states to establish exchanges? Clearly there is more to this than your flippant dismissal indicates.
He made a mistake. Simple as that.