Be sure to read Linda Greenhouse's powerful column in the New York Times on the Supreme Court's decision to hear arguments in King v. Burwell -- which Jonathan Chait called "a mind-blowing development" -- and how, in terms of politicizing in the court, it's even "worse" than Bush v. Gore. In this case, Greenhouse writes,
There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law....
This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect....
There is simply no way to describe what the court did last Friday as a neutral act.
Given the naked cynicism of the challenge to the ACA, and the lack of a clear need for the SCOTUS to intervene, why would the Court decide to hear this case? [Update: the rest of this paragraph has been revised to correct a silly misreading of Greenhouse in the original.] Greenhouse presumes the willingness of four members of the court known to be hostile to Obamacare to prioritize ideology over jurisprudence (a state of affairs Brian Beutler calls "the only reason left to worry," but it does seem like a good reason). She doubts that Chief Justice John Roberts would have provided a fifth vote - not necessary in any case - given the threat to his legacy the case could represent. But, she wonders, could it be that the four most conservative members of the court voted to hear the case "precisely to put the heat on John Roberts"?
Along with being a clear explainer on what the furor over this decision is all about, and a strong expression of exasperation on the part of a careful observer of the Court, Greenhouse's column is a reminder that John Yoo is still out there offering his opinions on legal matters (from an elite academic perch) -- and doing so in astonishingly moralistic terms, considering the source.
Professor Yoo, formerly of the Justice Department’s Office of Legal Counsel and now at the University of California at Berkeley, wrote [for National Review] that the new case gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.” John Yoo — yes, the Bush administration lawyer whose “torture memos” attempted to justify that administration’s “enhanced interrogation” policies — is a smart man, a former law clerk to Justice Thomas who remains well connected at the court. His choice of the words "atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.
Greenhouse doesn't quote the line where Yoo breaks the irony barrier: "the insincere misreading of the statute will grate especially hard on Roberts’s professionalism." Insincere misreadings of statutes have a way of doing that.
So, how much is Roberts's conscience likely to determine the outcome here? We'll have to hope for the best. After all, to quote Yoo once more: "We shouldn’t discount the possibility that the Justices just want to do the right thing!"
