Bioethics Blogs

Friedman & Lithwick on King v. Burwell: Stay Calm and Stay Calm?

Barry Friedman and Dahlia Lithwick have a post in Slate entitled “Obamacare Is Doomed! Everybody Panic!” Here.

I regularly read, enjoy, and respect SLS grad Dahlia’s work and I hope she and Professor Friedman (of NYU) are right.  And they are clearly right that panic is a not good reaction.  Panic is the worst emotion: never useful and never even enjoyable. I recommend in this case concern and righteous anger.

Cases do get taken without circuit splits, sometimes in situations of overwhelming importance, sometimes when the Court thinks a lower court decision is just blatantly wrong.  These subsidies don’t seem, to me at least, to fit the first category. I worry, a lot, that at least four and maybe five justices think they fit the second.

Friedman and Lithwick argue that this is a case that is important to decide quickly because of the disruption a negative ruling would cause.  But why, exactly, would finding out in June 2015 that you won’t have health insurance be less disruptive than finding out in, say, February 2016?

The precedent they cite for the Court taking a case without a circuit split and upholding the constitutionality of the statute is not encouraging. In Bond v. U.S. the Court held the Act was constitutional but reversed its application in that case:  i.e., held the lower court was wrong.  There’s no constitutional issue in King; why should I find this precedent encouraging?

They further point out that people may be wrong in their guess about Chief Justice Roberts.  That’s true, but in this case those “people” would probably include Justices Scalia, Kennedy, Thomas, and Alito.  My guess is that they’ve got better information than the rest of us.  And, frankly, if the Chief Justice wanted to get rid of Obamacare, doing it now, as a statutory interpretation, just after a sweeping GOP victory, probably makes it less visible and less politically harmful to the Court than the 2012 case would have.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.