Did Brett Kavanaugh Just Save the Affordable Care Act?

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Analysis Law and Policy

Did Brett Kavanaugh Just Save the Affordable Care Act?

Jessica Mason Pieklo

If we take Justice Brett Kavanaugh at his word, millions of people won't lose health insurance when the Supreme Court decides on the fate of the ACA.

I’ve covered the Supreme Court for a decade and fights over the Affordable Care Act nearly as long. And in that time, I’ve learned three fundamental lessons: Never predict how a case will turn out, never schedule a vacation in June, and never go with a hippie to a second location. OK, that last one I got from 30 Rock, but the other two I got from covering the Court.

The first lesson hasn’t stuck, since here I am saying I think the Roberts Court, which heard oral arguments Tuesday in Republicans’ latest effort to kill the ACA, might not kill off health-care reform in the middle of a pandemic. At least not entirely.

As to the second, well, we’re in the middle of a pandemic, and I don’t plan on taking my family anywhere for a while.

That’s especially true since Tuesday made clear that the conservative justices see the case about much more than whether Republicans in Congress planted a constitutional time bomb back to 2017, when they voted to zero out—rather than repeal—the penalty associated with not having health insurance under the ACA. Nope. They see it as an opening to reframe the growing partisan divide over public health initiatives into yet another liberty campaign.

Justice Clarence Thomas isn’t known for being chatty in oral arguments, but this is another part of life that the COVID-19 pandemic has changed. Since we can’t gather safely in public because of a botched federal response to the pandemic, Supreme Court oral arguments, which were remote when Court was last in session over the spring and early summer, are still being held remotely. It also means that in order to maintain some semblance of control, Chief Justice John Roberts instituted a round-robin approach to oral arguments, where each justice, in order of seniority, has an allotted time to ask questions if they so choose.

And let me tell you: Whoo boy, did Thomas choose to participate in Tuesday’s arguments. In his first question, he compared the ACA’s requirement that individuals carry health insurance to mask mandates in the time of COVID-19—and not in the “both are good to advance public health and well-being” kind of way, either. Immediately the Court’s most conservative justice tipped his hand to a future play for the conservatives: enshrining opposition to public health laws as a matter of individual constitutional liberty.

This is not a new tension in the law. But with an uncontrolled pandemic and a federal judiciary overrun by Trump appointees that equally love vulture capitalism and hate poor people, it’s the kind of signal-flare court watchers can’t ignore.

This brings me to John Roberts. The one place conservatives have legitimately split with Roberts is in his votes to uphold the ACA. And I can see why! Conservatives are in what must be the incredibly frustrating position of hating a law that is wildly popular because, while flawed, it’s largely done good things, like stopped insurance companies from price gouging consumers based on preexisting conditions, or denying them coverage outright; things like guaranteeing access to gender affirming health care and birth control.

Sex. Abortion. Parenthood. Power.

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But what conservatives get twisted is that while Roberts has voted more than once to uphold the ACA, it’s not because he likes it, but because the theories challenging it have been bad. Like laughably bad. Maybe not as laughably bad as the arguments Acting U.S. Solicitor General Jeffrey Wall and Texas Solicitor General Kyle Hawkins made on Tuesday—that when Republicans in 2017 zeroed out the tax penalty, they magically transformed the tax to… not a tax! According to these geniuses, since the mandate is not a tax, John Roberts, who was fine with the mandate when it was a tax, has to vote to strike it down this time now that it’s not a tax.

Oh, and also, the Court has to strike the entire ACA as unconstitutional for reasons like Republicans in Congress are too scared to do it because they know it is a pretty surefire way to end their political careers.

Roberts didn’t buy it—at least not the part where the entire ACA has to go. And that’s good! But if the ACA were to survive in any way, Roberts needs to bring along another conservative justice with him, which means ACA’s fate could be left up to Squee’s best drinking buddy, Justice Brett Kavanaugh.

Like Thomas, Kavanaugh is also bad with a tell. And his came early when he conceded that the law is pretty clear: If the Court agrees with Texas and the Trump administration that the individual mandate is unconstitutional, the answer isn’t to strike the entire law—it’s to cut it out, like a tumor.

If we’re to take Kavanaugh at his word, then I feel pretty good saying that next summer, the Court will release a decision that finds the individual mandate unconstitutional but doesn’t go so far as to strike down the health-care law in its entirety. But I don’t feel so good about that prediction, one that rests entirely on the reasonableness and judicial temperament of both Roberts and Kavanaugh, that I’m planning any personal time off in June, either.

What emerged Tuesday was a clear fault line with the Courts’ conservatives now that Amy Coney Barrett has joined the bench. It was clear she enjoyed the arguments, which by proxy means she took some amount of glee out of the idea of cutting off health-care access to millions. As did Thomas, who was practically charting out the legal arguments future MAGA plaintiffs will make to challenge any Biden administration initiative, all in the name of “liberty.” I don’t have to tell you Justice Samuel Alito enjoyed listening to attorneys try and stick it to the Obama administration one more time; that guy lives for this stuff. And don’t let Justice Neil Gorsuch’s quarantine beard fool you. When it comes to embracing free-market capitalism and preventable death, Gorsuch is a reliable vote for business interests like those who will inevitably challenge any future COVID-19 shutdown orders.

So that leaves Roberts and Kavanaugh as what stands between us and the free-market libertarian death cult at least four of the Court’s justices seem to have embraced. None of this is great news. But it might be enough not bad news to salvage most of the ACA.

But if I’m wrong, and Roberts and Kavanaugh figure “YOLO 2020, let’s do this” and vote not as the law says they should but as political allegiance suggests they could, then the results will be catastrophic.

Millions of people will lose access to health care. Others will be trapped in jobs that might expose them to the coronavirus because getting insurance through their employer is their only option. An entire marketplace will be upended. Who knows what that fallout looks like, but a quick scan under the Trump administration suggests a marketplace flooded with worthless insurance plans that do nothing but rip off consumers and a marketplace that lets health-care providers discriminate against women, transgender patients, and LGBTQ folks. And that’s before we factor in how the virus is permanently changing our health-care economy.