U.S. Supreme Court justices need to ask themselves basic questions:
Are they prepared to force 7.5 million Americans off the health insurance rolls?
Do they intend to tell voters in Arizona and California that they are powerless to curb legislators’ desire to protect themselves and their friends by gerrymandering congressional districts?
Like the nation, the U.S. Supreme Court is polarized. But based on questions during this week’s oral arguments in two cases, the court seems torn in ways that do not bode well for the well-being of millions of Americans or for democracy.
In King v. Burwell, challengers bent on destroying the Affordable Care Act argued Wednesday that four words – “established by the state” – in the 900-page bill ought to spell the law’s demise.
They argue that federal subsidies should be available only in states such as California that established health exchanges, and that subsidies should not be provided to 7.5 million low- and moderate-income people in 34 states where the federal government stepped in to run exchanges after state authorities failed to do so.
The challengers, who lobbied states against establishing exchanges, seek to invalidate the Affordable Care Act by citing the four-word aberration, likely a drafting error, in a law that despite glitches promises “quality, affordable health care for all Americans.”
President Barack Obama correctly is offering no backup plan. If a majority of the well-insured justices tug on a thin thread and unravel Obama’s signature legislation, they should have to deal with the repercussions.
But of course they won’t. They are lifetime appointees, who enjoy the privileges of a rarified world in which they need not worry about harsh exclusions for pre-existing conditions, or unfortunate 20-something-year-olds who cannot afford insurance.
Three justices appointed by Republican presidents seemed prepared to side with the foes of Obamacare. Four Democratic appointees likely will side with the president. The swing votes are Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. We hope reality takes hold.
Then there is the redistricting case, brought by the Republican-controlled Arizona Legislature against the Arizona Independent Redistricting Commission, which was created by an initiative in 2000. The justices must decide whether voters can establish independent commissions to draw congressional boundaries.
If they side with Arizona legislators, the justices would threaten California’s redistricting commission, which gained the right to draw congressional boundaries in 2010 when voters approved Proposition 20.
They also would cross former Republican Govs. Pete Wilson, George Deukmejian and Arnold Schwarzenegger, Republican donor Charles T. Munger Jr. and Democratic Attorney General Kamala Harris who signed briefs arguing for the people’s right to determine congressional boundaries.
If the court sides with the Arizona Legislature, Republicans who dominate Arizona politics would carve seats to benefit Republicans. Without an independent commission in California, Democrats no doubt would monkey with Republican seats.
Why not collapse districts held by Republicans Tom McClintock of Elk Grove and Doug LaMalfa of Richvale? Why not rejigger House Majority Leader Kevin McCarthy’s Bakersfield seat into a district that includes Democratic bastions?
President Ronald Reagan, who used initiatives during his California days, appointed Kennedy. We hope the justice remembers his Sacramento roots, as he did in one notable dissent in which he defended the initiative process:
“The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement ‘the theory that all power of government ultimately resides in the people.’”
For all the law’s complexities, the justices face simple questions: Do they give deference to voters, who want less partisan elections, and to the legislative and executive branches that conceived of the Affordable Care Act, or will they let ideology be their guide?