SCOTUS and the ACA arguments

Following Wednesday's oral arguments in the Supreme Court hearing on the latest challenge to the Affordable Care Act subsidies, the conventional punditry wisdom is that either Anthony Kennedy or John Roberts, or both, could provide the swing vote(s) to uphold the law.

But here's the interesting thing.    None of the nine justices gave any indication of failing to see the catastrophe that will result in our health care system if the subsidies for federal exchanges are eliminated.   It's just that they differ on how to remedy the problem.

Scalia says congress can easily fix it by passing a law to change the wording. Does he really think this Congress would do that?  That seems almost sadistic to say with a straight face.  If that were possible, it would have already been done.   It's a simple and frequent procedure, where they go back and "correct" flaws in bills that have already been enacted.

Alito seemed to favor ending the subsidies but delaying the implementation for six months, which would give time for figuring out what to do.    Thomas of course said nothing as is his habit.

So, essentially, everybody realizes there is a real problem.   The four liberals want to fix the problem and have good legal precedent for doing so in that there is strong precedent for taking into account the intent of the law as a whole, rather than focusing on one sentence that seems to contradict the whole.    And that is a position that Scalia himself has taken previously in written opinions of other cases.   So, by all that's right, he should vote to uphold the law.

Scalia and Alito want to punt and say that it's not their job to fix botched legislation, since congress can do it.   And, if they don't, well . . . that's not our problem.  We're pure letter of the law kind of people.   And damn the consequences.

So what part do the individual justices' politics play in these decisions?    If Scalia takes the expected "not our problem" position, then he is reversing what he has written in a previous case.  And knowing of his conservative political position, it's hard not to think that politics influenced his vote on this.

As Johnathan Cohn wrote, "Justice Antonin Scalia, whose past opinions made clear that justices should not read passages of laws in isolation, seemed fully prepared to do just that in order to rule against Obamacare."

Actually, maybe it's not politics, in the sense of which party they vote for, but more like philosophy of government, how they see what government is supposed to do, and whether the consequences of their decisions should partly determine what they decide.

Undoubtedly this kind of "political" philosophy enters into decisions a lot.  And it seems "political" because what I described in the last paragraph is what most likely determines which political party someone favors.

Ralph