The Supreme Court on Wednesday heard a round of oral arguments in a major case that threatens to throw the Affordable Care Act into a tailspin, but it’s too early to tell how the Justices will decide.
In the words of NBC’s Pete Williams, it’s “impossible to predict” how they’ll rule.
The case revolves around a handful of words in the law colloquially known as Obamacare, and centers on a key question: Does the federal government have the power to issue tax credits to people signing up for health insurance through the exchanges established by Obamacare?
The plaintiffs in the case argue it doesn’t, and that the government shouldn’t have the ability to offer subsidies in 37 states that declined to set up their own health-insurance exchange.
If the Obama administration loses, millions of people could lose their health-care subsidies in the snap of a finger.
Let’s run down the good and bad signs for the challengers and for Obamacare in Wednesday’s oral arguments.
Good signs for the challengers
- They had support from their base. The Supreme Court’s conservative-leaning justices appeared sharply skeptical of the government’s arguments and sympathetic to the challengers, especially Justices Samuel Alito and Antonin Scalia.
- Alito reportedly suggested that if the Court ruled for the plaintiffs, it could stay the decision to the end of the year, meaning that Congress could have time to work out a fix for the law and that people could continue to receive subsidies until the end of 2015.
- At least some of the justices appear to have faith that Congress could fix it, according to one telling exchange between Scalia and Donald Verrilli, the U.S. solicitor general. If they knew a fix was imminent, this would presumably make the justices more likely to rule for the plaintiffs.
- The plaintiffs seemed pleased after the oral arguments. “We never imagined we would end up at the Supreme Court, but that just shows how important this case is, not just for us, but for so many others around the country who are hurt by Obamacare,” said Pam Hurst, a spokeswoman representing all four challengers.
Good signs for Obamacare
- The four liberal-leaning justices offered full-throated defenses of the law and the government’s position. This started with Justice Ruth Bader Ginsburg questioning the plaintiffs’ standing — aka, whether or not they have been harmed by the law. Those questions repeatedly came up throughout the oral arguments.
- Justice Anthony Kennedy opened up the probability that he will become a key swing vote. He told the challengers’ lawyer that their “argument raises a serious constitutional question.” He repeatedly sounded concerned about the potential fallout from the Supreme Court overturning this part of the law, and he said the administration had a “powerful argument” about the consequences.
- Based on Kennedy’s comments, hospital stocks rose more than all other stocks Wednesday morning on the S&P 500.
- Justice Elena Kagan offered a clever analogy in support of of the administration, comparing the contextual legal challenge to an assignment involving her three law clerks.
What we still don’t know
- Which way Chief Justice John Roberts will rule. Remember, he was the swing justice last time who saved Obamacare. And judging from multiple reports, he kept his cards close to his vest this time and said virtually nothing at all. Roberts and Kennedy are the justices to watch.
The justices will gather Friday and vote on their decisions. We likely won’t know how they will rule until June, when decisions from this Supreme Court term are handed down.
Here’s a map from Avalere Health, a nonpartisan risk and consulting firm, outlining which states could feel the most pain if the Supreme Court strikes down part of the law:
Brett LoGiurato is the senior national political correspondent at Fusion, where he covers all things 2016. He'll give you everything you need to know about politics, with a healthy side of puns.