King v Burwell office pool

An optimistic bet.

Here’s my card. I’m not a lawyer, but do you really think this is about the True Meaning of the Law, and not politics?

King to lose 6-3. Majority: Breyer, Ginsburg, Kagan, Kennedy, Roberts, Sotomayor. The opinion, written by Roberts or Kennedy, will be on narrow grounds that the plaintiff’s reading would amount to unconstitutional federal coercion of the states, precedent NFIB v Sebelius. So it will duck the statutory construction issue.

Dissent by Alito, Scalia, and Thomas to uphold, because Obama. Scalia’s contortions on statutory construction, contradicting his own previous opinions, will be fun to read.

Dissent Concurring opinion [if I don’t fix this I will never hear the end of it] by Sotomayor and Ginsburg listing about 200 reasons why the suit is frivolous, starting with the absence of standing. I’m not so confident about this; Roberts may have extracted their moderation as the price of his vote. But Sotomayor at least was very angry on the record about the Wheaton College double-cross after Hobby Lobby:

Those who are bound by our decisions usually believe they can take us at our word. Not so today.

Payback time maybe.

Your counter-offers?

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

14 thoughts on “King v Burwell office pool”

  1. I am a lawyer, but I don't think my trial litigation practice or appellate experience in state and lower federal courts gives me any more insight into the Supreme Court than those who follow public affairs generally. I agree with you that 6-3 is the smartest bet, with Kennedy and Roberts resting on narrow grounds (perhaps the one you note, perhaps standing) and with concurring (rather than dissenting) opinions from the liberals agreeing that HHS's interpretation was reasonable.

    1. Also not a counter-offer, I made the same 6-3 prediction on my blog after oral hearing. Roberts' silence at the hearing was important – I think Kennedy was asking the questions he might ask, and Kennedy's questions leaned towards sanity.

      OTOH, I could be off by two votes.

  2. No counteroffer except to rule out the "dissent" by Sotomayor and Ginsburg. (Ok, it's been many a year since I took Con. Law, but wouldn't any opinion as to standing be a concurrence in the result, not a dissent. I don't think that they'll make that big a deal as to the standing issue in any event.)

  3. I agree with your result and the line-up. I think it's interesting that you describe your predicted basis for the decision–entailing a saving construction to avoid a constitutional problem–as a "narrower" basis for the decision than simple reading the text of the statute as a whole, as everyone insists courts are supposed to do.

  4. I'd like to think that's right, but fear it may be wishful thinking on my part. Still, my guess – just that – is 5 to 4 for the government, with Kennedy or Roberts, not both, in the majority. I suspect Roberts wants to uphold the law, and will vote to do so if Kennedy doesn't. If Kennedy does, then it becomes a question of what Ropberst feels like writing – a dissent or a narrow opinion.

    In anyone imagines otherwise, this is wild conjecture on my part.

    1. Though looking at the decision, James got the count right but not the reasoning. It was straight up saying that the ACA must be interpreted as intending for subsidies to apply on all exchanges.

      1. Yes. I was too pessimistic on the reasoning. The Administration won on basic statutory construction (not to mention chaos in the insurance industry).

  5. Great call! As with the earlier vote to uphold ObamaRomneyHeritageCare, it is clear Roberts is the last sane conservative in America. Every other visible Republican leader is so wrapped up in the prole-feed propaganda about KenyanSoshializm that they have lost all moorings. Fortunately for them, Roberts is still there to take "yes" for an answer. "Yes, we can implement the Heritage Foundation's ideal healthcare solution and permanently block single payer!"

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