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In what will probably be the most anticlimactic final day of the term in recent memory, the Court has three outstanding decisions–Arizona St. Legis. v. Az. Ind. Restricting Commission, Michigan v. EPA, and Glossip v. Gross. Based on Kedar Bhatia’s ever-helpful Opinion by Sitting chart, we can speculate about who will write what.

Arizona Leg. is the only outstanding decision from the February sitting. From that sitting, Justices Kennedy and Ginsburg have written nothing. Odds are, it is either Kennedy or Ginsburg with the opinion. But, whoever does not write potentially lost a majority opinion from that sitting to one of the Justices who wrote two opinions. Writing two opinions were Scalia (Din and Abercrombie), Breyer (Coleman and Tibble), and Alito (Clark and Davis). There were two 5-4 decisions among those: Davis v. Ayala and Kerry v. Din. I think Justice Kennedy was originally assigned the majority opinion in Kerry v. Din, but lost Scalia, Roberts, and Thomas. Only Justice Alito concurred with AMK. Recall that Scalia, Roberts, and Thomas issued a much broader opinion that implicated the SSM cases, while AMK resolved it on much narrower grounds. It’s possible Nino’s circulated concurring opinion broke off the votes of Roberts and Thomas. If this is right then Kennedy lost the majority in Din, and Ginsburg was assigned the Arizona Legislative Case. That could explain why this fairly routine case was hanging around so long. Based on the FantasySCOTUS predictions, it looks like RBG, and at least four other Justices, will vote to affirm. So that’s one predictions.

The only outstanding case from the March sitting is Michigan v. EPA. The only Justice who has not yet written from this sitting is Justice Scalia–all of the others have written one opinion–so it is safe to assume that Justice Scalia will write that case. Not so fast, says Ian Millhiser. He notes that it “is unlikely that Scalia will write a ninth opinion when many justices haven’t even written an eighth opinion.” But, let’s assume that Kennedy lost the opinion in Din v. Kerry, and Scalia was not originally assigned it. Michigan v. EPA was argued on 3/25 and Kerry v. Din was argued on 2/23. It’s possible that when the opinions were assigned for Michigan v. EPA, the Kerry v. Din opinion had not yet flipped. So I’m not so sure we have to worry about 9 assignments. Scalia would still have 8 assigned opinions if he writes Michigan v. EPA, which would match him up with Justice Breyer who also has 8. If RBG has the Arizona case, she will be at 7. If Scalia has Michigan v. EPA, then it is almost a certain reverse. Indeed, FantasySCOTUS is showing a 5-4 reverse.

The final outstanding case from the April sitting is Glossip  v. Gross, the death penalty case. Forgetting for a moment the numbers, I can’t remember the last 8th Amendment case that *wasn’t* written by Justice Kennedy. And, as it turns out, the math lines up to give AMK this decision. Since there were only 7 cases argued during this sitting, two justices will have to be left out. With no writings from April are Kennedy, Ginsburg, and Sotomayor. Sotomayor already has 7 majority opinions. GInsburg has 6, but with the Arizona case, she will have 7. Kennedy only has 6, but with his lost opinion in Kerry v. Din, it is really 7. Glossip will give him 8, tying him with Breyer and Scalia. So 3 of the Justices would have 8, and 6 would have 7 assigned opinions. That is a little top-heavy, but is in keeping from past years. FantasySCOTUS is showing a strong vote for AMK to affirm, in a 5-4 decision.

So my forecasts–RBG writes the majority in Arizona voting to affirm, Scalia writes the majority in EPA to reverse, and Kennedy writes the majority in Glossip to affirm. These predictions are worth what you paid for. As an aside, I love this #SCOTUSSoduku

After what must have been a pretty depressing week for Nino, enjoy this Funny or Die video, putting Justice Scalia’s dissents from King and Obergefell to music.

In the New Republic, Simon Lazarus notes that after King v. Burwell, the Chief Justice is in charge. He quotes a comment I made on the King v. Burwell FedSoc conference call a few hours after the ruling (in truth, that day was a blur, and I barely remember saying it!).

Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law.

Alas, the Chief has signaled that we’re done here. I expect the D.C. Circuit to promptly dispose of the origination clause challenge. It has been pending for about 8 months–I think they were holding it for King v. Burwell. There’s no way there are four votes for certiorari now, regardless of the merits.

Jack Balkin in a characteristically astute post notes that the ACA is now part of the “social contract” and is a “framework statute.”  I don’t know if this was true after NFIB. Arguably, the Chief’s decision could be characterized as one of constitutional avoidance. But King v. Burwell had no constitutional overtones, yet the Chief approached it in a similar manner to save the law again.

As I wrote in essay on CaseText, the Chief Justice has introduced the “Obamacare Canon.” It provides that judges from now on should put a thumb on the scale of the ACA to avoid disrupting health care markets. After all, it’s too big to fail! Until the Court’s other decision this week is relied on to expand the notion of positive liberty to include a dignified right to health care.

 

At CaseText (a cool new legal research site), I published an essay on King v. Burwell, titled Chief Justice Roberts’s Once Again Saves The ACA with the “Obamacare Canon.” I draw parallels between the Chief’s saving construction in NFIB v. Sebelius and his decisive thumb on the scale of the state in King v. Burwell as evidence of a sui generis principle that Justice Scalia labelled as “The Affordable Care Act must be saved.” Or, as I refer to it, the “Obamacare Canon.”

Here is a snippet:

Unlike NFIB, King v. Burwell was a case of statutory interpretation rather than of constitutional interpretation. The question presented was whether the federal government could pay subsidies in ACA exchanges “established by the state[s].” The first 20 pages of the Chief’s offered a workmanlike exercise in how to read a statute in context, and why the literal text didn’t necessarily control. I didn’t find it persuasive, but had the opinion ended there, I would have been only slightly disappointed.

Then it took a sharp turn for the worse. On the penultimate page, the Chief acknowledged that the “arguments about plain meaning . . . are strong.” (You would think this would go on the first page, not at the end). Then, in the final paragraph , we see what is at the heart of the decision, and what I suspect was driving his “saving construction” in NFIB.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

This is the dicta that will sink a thousand Obamacare ships.

Even though the plain text of the statute was “strong,” the Chief Justice was willing to put a thumb on the government’s scale for one simple reason: the challengers’ side of the scale would not “improve health insurance markets.” It’s as if the Chief stopped reading at Title I of the Act, which says: “Qualify, affordable health care for all Americans.” But then the law goes on for another 1,000 pages, as it balanced: (1) expanding access to health care, (2) keeping costs low, while (3) respecting state sovereignty. The never-ending ACA (that no one read) was reduced to a bumper sticker (or to borrow a phrase from Justice Scalia’s other recent dissent, a “fortune cookie”).

It is unmistakeable in my mind that similar reasoning motivated the Chief’s decision in NFIB. Had the Court invalidate the individual mandate–and left the rest of the ACA intact–it would have created an adverse selection death spiral, as healthy people would lack the incentives to enter markets, and prices would skyrocket. In King, had the subsidies been blocked in 34 states that did not build an exchange, a similar death spiral could have been triggered (assuming Congress didn’t fix it). In both cases, ruling against the federal government would not have “improve[d] health insurance markets.”

The modus operandi of the Chief Justice is that Obamacare–or as Justice Scalia called it “SCOTUScare”–is special. A Justice who professes such fidelity to the rule of law has one set of rules for normal laws–such as the Voting Rights Act, which he had no problem gutting inShelby County v. Holder–and a different set of rules for super laws. Justice Scalia’s dissent sums up the reasoning well:

“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

Twice the Chief Justice has been confronted with winning arguments–a constitutional argument and a statutory argument. Twice he rejected those arguments because he was motivated by his self-imposed Hippocratic oath: “do no harm” to Obamacare. And twice, he has rescued the law from the brink. This deference is not based on the proper role of a judge, but on the Chief Justice’s determination that Obamacare’s aspirations are more important than what the law, or the Constitution actually says. Alas, the buck stops here. The Chief sent a clear message to the lower courts–if there are any challenges to the ACA, apply the Obamacare canon of construction, and move on. It is unlikely that the Court would even bother accepting any future fundamental challenges to the ACA. The buck stopped here.

Here are all of the filings concerning the Plaintiffs’ motion for a preliminary injunction in Defense Distributed v. U.S. Department of State. The federal district court in Austin will be holding a hearing on the preliminary injunction on July 6.

Plaintiffs’ Motion for Preliminary Injunction

• 5/11/15 – Motion for Preliminary Injunction
• 5/11/15 – Proposed Order for Preliminary Injunction
• 5/11/15 – Memorandum in Support of Motion for Preliminary Injunction
• 5/11/15 – Appendix Part I
• 5/11/15 – Appendix Part II
• 5/11/15 – Appendix Part III
• 5/11/15 – Appendix Part IV
• 5/11/15 – Appendix Part V
• 5/11/15 – Appendix Part VI
• 5/11/15 – Motion to Exceed Page Limits for Motion for Preliminary Injunction
• 5/11/15 –  Proposed Order for Motion to Exceed Page Limits
• 5/11/15 –  Order setting hearing on motion for preliminary injunction for July 6, 2015
• 6/5/15 – Plaintiffs’ Notice of Supplemental Authority
• 6/8/15 – Plaintiff’s Notice Re: Commodity Jurisdiction Rulings
• 6/8/15 – Notice Re: Defendants’ Recent Proposed Rules

Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction

• 6/5/15 – Plaintiffs’ Notice of Supplemental Authority
• 6/8/15 – Plaintiff’s Notice Re: Commodity Jurisdiction Rulings
• 6/8/15 – Notice Re: Defendants’ Recent Proposed Rules
• 6/10/15 – Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction
• 6/10/15 – Declaration of Lisa V. Aguirre
• 6/10/15 – Proposed Order

Plaintiffs’ Reply to Defendants’ Opposition

• 6/24/15- Plaintiffs’ Reply to Defendants’ Opposition
• 6/24/15- Exhibit 1 – Cody Wilson Supplemental Declaration (Sealed)
• 6/24/15- Exhibit 2 – Gottlieb Supplemental Declaration
• 6/24/15- Exhibit 3 – Williamson Supplemental Declaration
• 6/24/15-Exhibit 4 – Versnel Supplemental Declaration