Last month, the Supreme Court announced it would consider the latest Republican effort to destroy the Affordable Care Act, with oral arguments scheduled the week after Election Day. In general, health care advocates have been largely unconcerned, in large part because the case is patently foolish.
But also bolstering hopes was the high court arithmetic: the last time the Supreme Court heard an “Obamacare” case, six justices — Roberts, Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor — voted to protect the law. Kennedy, of course, retired, but that still left a five-member majority in place.
Ruth Bader Ginsburg’s passing obviously changes the calculus further.
The week after the November general election, the court will consider the future of the Affordable Care Act, which a coalition of red states are hoping to strike down — including the provision requiring insurance companies to cover pre-existing conditions. If [Chief Justice John] Roberts, who has voted in the past to uphold the law, sided with the liberals this time, that 4-4 tie would leave the lower court ruling in place, which declared the law invalid.
It’s possible, of course, that the case, now called California v. Texas, is simply too foolish for even the most reflexively partisan justices. Indeed, as regular readers know, even many conservatives and ACA critics agreed that the lower-court ruling was indefensible. Reactions tended to include words and phrases such as “pretty bananas,” “embarrassingly bad,” and “absurd.”
With this in mind, perhaps even knee-jerk ideologues on the Supreme Court might think twice about taking health security from tens of millions of American families based on a case most serious observers consider ludicrous.
But given the politicized nature of the federal bench, it seems more likely that Alito, Thomas, Gorsuch, and Kavanaugh will vote to destroy the nation’s health care system.
There’s no shortage of possible outcomes — the HuffPost’s Jonathan Cohn did a nice job reviewing the possibilities yesterday — made more complicated by the fact that we don’t yet know whether there will be a vacancy on the high court by the time the ACA case is heard in November. That said, let’s not forget a relevant detail: as Donald Trump weighs his possible nominees, there’s little doubt he’ll be looking for a justice who’ll tear down his own country’s existing health care system. We know this with some certainty because the president has said so. Shortly after launching his candidacy, Trump tweeted, “If I win the presidency, my judicial appointments will do the right thing unlike Bush’s appointee John Roberts on ObamaCare.” He added months later that he opposed Roberts precisely because the chief justice voted to leave the ACA intact. The health security for tens of millions of Americans was already in jeopardy. RBG’s death has made the peril considerably more serious.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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