Justice Anthony Kennedy was furious when a majority on the U.S. Supreme Court upheld President Barack Obama’s healthcare law. As he read the dissenting opinion from the bench three years ago, his anger was palpable. The majority regards its opinion “as judicial modesty,” he declared. “It is not. It amounts instead to a vast judicial over-reaching.”
That was Kennedy on June 28, 2012.
Now, as the country awaits a ruling in the second major challenge to Obama’s signature Affordable Care Act, a question is whether the justice who was the voice of the opposition then could provide the critical fifth vote to uphold the law on the nine-justice court now.
At stake are the tax-credit subsidies that have helped low- and moderate-income Americans obtain health insurance. The challengers say the government unlawfully extended those subsidies to states that did not create local insurance exchanges but instead relied on the federal exchange. If the court strikes down the subsidies, millions of Americans in at least 34 of the 50 states could lose coverage.
Five years after its passage, the Affordable Care Act has become ingrained in American life even as it remains politically divisive. “This is now part of the fabric of how we care for one another,” Obama, a Democrat, declared in a speech last week. Republicans have called for repeal and among the related lawsuits simmering in lower courts is a dispute brought by Republicans in the U.S. House of Representatives over Treasury Department payments to healthcare insurers.
IMPOSSIBLE TO PREDICT
In the case before the court, the unique issue along with Kennedy’s record and his comments in oral arguments raise the possibility he will join the four liberal justices to endorse the law. Three years ago, his fellow conservative Chief Justice John Roberts cast the swing vote with the liberals to uphold the law. It marked a rare episode when Kennedy, the usual key justice on this divided bench, did not control the outcome of a momentous case.
It is impossible to predict with confidence how the court will resolve the case, King v. Burwell. A ruling is anxiously awaited by officials in Washington and the insurance and healthcare industries nationwide.
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