The Wall Street Journal mentions this morning that our now-socialized health care sector is filing panicked Supreme Court briefs in the upcoming King v. Burwell case that emphasize not legal arguments but the disruption to their business model if Obamacare’s state subsidies are struck down. In other words, they mostly submitted policy briefs to the Supreme Court—not legal briefs. I wonder if their lawyers gave them the appropriate policy wonk discount, since we work cheap compared to K Street lawyers. Somehow I doubt it.
Meanwhile, it is widely thought that in the first Obamacare case, NFIB v. Sebelius, the supporters of Obamacare “worked the refs”—specifically that a concentrated campaign to affect Chief Justice Roberts’s views worked to get him to change his mind by appealing to his jurisprudential minimalism, and to his concern for the political reputation of the Court. Who know if this actually contributed to Roberts changing his mind about the case and casting the deciding vote to uphold most of Obamacare, but that’s water under the bridge now.
But the left is trying to run the same drill. Exhibit 1 is the egregious Jeffrey Toobin, writing in The New Yorker that Chief Justice Roberts ought to lead the charge to dismiss King v. Burwell for lack of standing by the plaintiffs:
[T]he Act may survive because of a legal doctrine beloved by conservatives and championed by Chief Justice John Roberts.
Every first-year law student learns about the principle of “standing” in civil-procedure class. Under Article III of the Constitution, the federal courts are only allowed to hear “cases” and “controversies.” For decades, the Supreme Court has interpreted those words to mean that plaintiffs must be able to show an “injury in fact” from a law in order to have the right to bring a case challenging the law.
For many years, liberals who have tried to bring federal cases to challenge government actions—in areas from the environment to welfare rights—have been thwarted by conservatives wielding the standing doctrine as a way to throw these cases out of court. During the George H. W. Bush Administration, a coalition of environmental and conservation groups sued to stop new federal regulations that limited the application of a section of the Endangered Species Act. Chief Justice Roberts, then the Deputy Solicitor General, persuaded the Supreme Court to throw out the case because the plaintiffs would not suffer direct harm from the new regulations and lacked standing to bring the case.
The plaintiffs in King v. Burwell might have some possible standing issues—I’ll leave this to more deep dish lawyers to argue out—but curiously, Toobin reports that the Obama Administration’s submitted briefs don’t raise the standing issue, which suggests they don’t want to postpone the day of reckoning until another Court term with a new plaintiff that might have better standing. The Court could have cited standing to have avoided NFIB v. Sebelius three years ago and waited until Obamacare had taken effect to grant a case, but I think they felt at the time that it was better to get it over with. I suspect the same consideration will apply today. But pretty clearly Toobin is trying to work the refs again.