In ACA ruling, US Supreme Court avoided major loss of public confidence

The U.S. Supreme Court’s 6-3 decision in support of the Affordable Care Act (ACA) prompted so much glee at the White House that a spokeswoman said staff broke out into “little happy dances” in the hallways. Even Republican leaders, dreading the political fallout if a Republican-driven case gutted the health care law, might have greeted the news with a little fist bump.

Yet it is hard to come away from this brush with a near health care disaster confident that the system worked and the law prevailed. For on the flip side of this decision is troubling evidence of how polarized politics are increasingly creating politicized courts.

Some court watchers say that Chief Justice John Roberts sensed the high court nearing the brink of being seen as politicized. That concern may have prompted him to write the majority opinion as an emphatic show of nonpartisanship, a Republican-appointed chief justice supporting the cornerstone of a Democratic president’s legacy.

President Obama rightly said that the Supreme Court had no business taking up the case of King v. Burwell. Lower federal courts had roundly rejected it and similar cases. The plaintiffs, a group corralled by conservative activists, said the health care law’s use of the phrase “established by the state” limited the ACA’s premium subsidies to policies sold through state-run marketplaces, or exchanges. They argued that policies sold through the federally run exchanges were not eligible, a finding that would have sharply increased the cost of millions of policies and effectively gutted the law.

That at least four justices and possibly five agreed to hear a case with such weak legal merit and so overt a political aim raised concerns about whether the court was willing to place ideology over legal principle. It certainly has drifted in that direction in the cases of Citizens United, Hobby Lobby and the weakening of the Voting Rights Act.

That three justices, Antonin Scalia, Clarence Thomas and Samuel Alito, actually supported this political ruse in the guise of a court case is disturbing and throws new light on the political dynamics behind the court’s pattern of 5-4 votes in major cases.

Linda Greenhouse, who covered the Supreme Court for three decades for The New York Times, wrote: “Justice Scalia derided the majority opinion as a ‘defense of the indefensible.’ But what would be truly indefensible, I believe the chief justice and Justice Kennedy came to understand, was the Supreme Court itself, if it bought a cynically manufactured and meritless argument and thus came to be perceived as a partisan tool.”

That perception may well be applied to two Republican-appointed appellate judges in Washington who ruled 2-1 in favor of plaintiffs who brought the same specious argument against the health care law in Halbig v. Burwell. The judge who wrote the majority opinion, Judge Thomas Griffith, said he came to his decision with “reluctance” given the potential impact of his conclusion.

In light of the wide rejection of the same arguments by lower courts, a three-judge Fourth Circuit panel and now the highest federal court, Griffith appears to have come to his decision with eagerness rather than reluctance. He leapfrogged the absurdity at the center of the plaintiffs’ case – that Congress wanted to limit rather than expand coverage – and ruled that the law required that millions of people should lose their subsidies.

It is a common claim that complaints about biased judges are merely a reflection of the complainer’s partisanship. Those who disagree with a decision talk about “activist judges.” Those who agree with a ruling speak of the judges’ courage and perception.

The law and the application of it should be above politics. The law should be respected as the best judgment of lawmakers and jurists distilled from argument, reflection and experience. In Citizens United, the Roberts court broke from that standard, discarded precedents and opened the political process – including the election of judges – to a deluge of outside money from corporations and wealthy individuals.

Unlimited and undisclosed contributions are shaping the policies of Congress and state legislatures and now undermining the independence of state courts. The federal courts, with judges appointed for life, are supposed to be insulated against politics. But in King v. Burwell, much of the nation feared politics would rule the nation’s highest court. That it didn’t is a relief, but the broader threat remains.

This story was originally published June 27, 2015 at 4:00 PM with the headline "In ACA ruling, US Supreme Court avoided major loss of public confidence."