The court's liberal wing came out aggressively, challenging the plaintiffs on a variety of issues: Standing, grammar, Congress's intent, and even if Carvin's argument squared with what he'd told the court in previous ACA cases.
The conservative justices were, if not quite as combative on the whole, strongly pushing Solicitor General Donald Verrilli to explain the seeming discrepancy in how the health law describes who gets the subsidies.
And the man at the center—literally, Chief Justice John Roberts sits in the middle—said very little.
Once again, Roberts is expected to be the swing vote in a case that could decide the future of the ACA.
Below, I've shared a few key exchanges and moments from Wednesday morning's oral arguments. (I'll be updating this blog post throughout the afternoon.)
One justice made the argument that the White House wants to hear
The case essentially hinges on how the ACA describes the exchanges, and whether there are substantive differences between a federally facilitated exchange and a state-based exchange.
In the disputed section of the law, the plaintiffs argue that the ACA makes clear that only an exchange "established by a state". At the same time, there's another section that references "such exchange" — implying that all exchanges are equally designed.
In defense of the law's varying language, Justice Elana Kagan offered a real-world example, citing her three law clerks.
In Kagan's hypothetical, she:
- Asks her clerk Will to write a memo;
- Asks Amanda to edit the memo; and
- Asks Elizabeth to write "such memo" if Will can't.
So if Elizabeth ends up writing the memo, Kagan says that opens a relevant question: Should Amanda still edit it?
Kagan thinks the answer is clear, in context: It's Amanda's job to edit the memo, no matter how the order of words shakes out. And that parallels the White House's argument: Whether a state decides to establish an exchange or not, in context, the subsidies have a clear job to play.
Justices' familiarity with anti-ACA arguments seemingly hampers plaintiffs' argument
King v. Burwell is essentially the Court's third major ACA legal challenge in four years, and the case is a rematch of attorneys, too: Both Carvin and Verrilli argued in the landmark NFIB v. Sebelius case back in 2012.
And there were times when the justices' familiarity seemed to hurt the plaintiffs, at least among the liberal wing of the court. For instance, Carvin was repeatedly challenged to explain why his new argument didn't square with his argument about exchanges in NFIB v. Sebelius. Eventually Chief Justice Roberts jumped in. "We've heard talk about this other case. Did you win that other case?" he asked Carvin—implicitly reminding the courtroom that Carvin had lost it. "So maybe it makes sense that you have a different story today?"
Carvin was visibly grateful for the interjection. "I'm really glad you said that," he told Roberts.
Kennedy pushes challengers on constitutionality, which is potentially good for administration
However, another likely swing voter wasn't as favorable to Carvin. Justice Kennedy suggested that the plaintiffs' argument would imply that the ACA's exchanges are unconstitutional.
Essentially, if the law requires states to establish their own exchanges in order to qualify for subsidies, as Carvin was arguing, then the ACA could be coercive: A state would have to agree to establish an exchange, or see its individual-insurance market go into a death spiral.
“It seems to me ... there's a serious constitutional problem if we adopt your argument,” Kennedy said at one point.
Kennedy's line of questioning was a surprise to some observers, and ended up leading much of the coverage of Wednesday's oral arguments. (That's partly because the questioning came in the first half of the hearing, and some reporters left early to file stories, shaping perception.)
The challenge—really, the reason not to get overly worked up—is that tea leaves harvested from oral arguments can turn to dust when the ruling's released. In NFIB v. Sebelius, Chief Justice Roberts aggressively questioned Verrilli over the constitutionality of the ACA's mandate, leading many observers to think he was a shoo-in to rule against the case...but Roberts ended up essentially siding with the White House.
Why should the Supreme Court act in a Congressional issue?
Meanwhile, Justice Antonin Scalia pushed Verrilli in a very telling exchange on Congress, contingency plans for King v. Burwell—and lack thereof.
Historically, a case that centers over a language dispute might be pushed back to Congress. If it's true that this is merely a misunderstanding, shouldn't it be easy to fix, Scalia wondered?
So let's say the Supreme Court finds for the plaintiffs, Scalia suggested and the ACA's subsidies are declared illegal in the 34 states with federal exchanges.
Scalia: "You think Congress is going to just sit there?"
Verrilli: "This Congress?"
Scalia: "If the consequences are as disastrous as you say … I think Congress will act."
More updates coming.