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 That was Kennedy on June 28, 2012.
Now, as the country awaits a ruling in the second major challenge to
Obama's signature Affordable Care Act, a question is whether the
justice who was the voice of the opposition then could provide the
critical fifth vote to uphold the law on the nine-justice court now.
At stake are the tax-credit subsidies that have helped low- and
moderate-income Americans obtain health insurance. The challengers
say the government unlawfully extended those subsidies to states
that did not create local insurance exchanges but instead relied on
the federal exchange. If the court strikes down the subsidies,
millions of Americans in at least 34 of the 50 states could lose
coverage.
Five years after its passage, the Affordable Care Act has become
ingrained in American life even as it remains politically divisive.
“This is now part of the fabric of how we care for one another,"
Obama, a Democrat, declared in a speech last week. Republicans have
called for repeal and among the related lawsuits simmering in lower
courts is a dispute brought by Republicans in the U.S. House of
Representatives over Treasury Department payments to healthcare
insurers.
 IMPOSSIBLE TO PREDICT
In the case before the court, the unique issue along with Kennedy's
record and his comments in oral arguments raise the possibility he
will join the four liberal justices to endorse the law. Three years
ago, his fellow conservative Chief Justice John Roberts cast the
swing vote with the liberals to uphold the law. It marked a rare
episode when Kennedy, the usual key justice on this divided bench,
did not control the outcome of a momentous case.
It is impossible to predict with confidence how the court will
resolve the case, King v. Burwell. A ruling is anxiously awaited by
officials in Washington and the insurance and healthcare industries
nationwide.
What is known: Two days after the March 4 oral arguments this year,
the justices, per their usual practice, took a vote in a small
conference room off Chief Justice Roberts’ chambers. The most senior
justice on the winning side then assigned the opinion for those in
the majority; the senior justice on the dissenting side tapped a
writer for the main dissent. Drafts of dueling opinions began
circulating among the chambers.
In this conversation through memos, the justices will sharpen their
arguments, sometimes compromising in reasoning and rhetoric to keep
a majority together. Those in dissent similarly hone their retorts.
The process is shrouded in secrecy, and the public will only know
who is writing which opinion when they are issued.
For King v. Burwell, the decision could come down as soon as Monday
morning, when the justices next take the bench. It is more likely to
be issued later this month. The toughest disputes tend to be
resolved right up against the traditional end-of-June deadline for
the court's nine-month session. Among the 20 awaited cases is also
the question of whether the U.S. Constitution guarantees a right to
same-sex marriage.
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A PIVOTAL POSITION
On healthcare, either Kennedy or Roberts could tip the balance. Yet
the 78-year-old Kennedy, appointed to the bench in 1988 by
Republican President Ronald Reagan, may be in a more pivotal
position based on his respect for state sovereignty and concern for
the practical consequences of a decision.
While the 2012 dispute posed a broad-ranging constitutional
challenge to the individual insurance mandate before it even took
effect, this one turns on a mere four-word clause allowing tax
credits for insurance purchased through exchanges “established by
the state.”
The challengers, libertarian lawyers who were among those who lodged
the 2012 attack, say that means that the subsidies are not available
to people who have bought insurance through federally facilitated
exchanges, which vastly outnumber state-run exchanges. The Obama
administration contends the law, taken as a whole, makes clear that
Congress, when it passed the law, intended the subsidies to apply to
all exchanges.
During oral arguments Justice Kennedy suggested the challengers'
view of the law could put unconstitutional federal pressure on
states, because if they failed to set up exchanges, they would lose
subsidies: "The states are being told either create your own
exchange or we’ll send your insurance market into a death spiral,”
he said.
Kennedy also does not rigidly interpret the words of a statute. He
considers how a decision may play out, and he noted that if “people
pay mandated taxes” and are denied tax credits, “the cost of
insurance will be sky-high.”
Still, Kennedy may harbor skepticism about the law known as
Obamacare, and he acknowledged during arguments the possibility that
the challengers could “prevail on the plain words of the statute.”
(Reporting by Joan Biskupic; Editing by Howard Goller)
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