The Supreme Court surprise that wasn’t

2 min read

John McDonough, professor of public health practice, was a senior adviser on health reform in the Senate from 2008 to 2010, where he worked on the development and passage of the Affordable Care Act. He weighs in on the Supreme Court’s decision upholding the constitutionality of federal tax subsidies to help lower-income people buy health insurance.

Prior to the decision, what was your feeling on which way the Court might rule?

Those watching the U.S. Supreme Court process on the King v. Burwell suit that almost upended insurance subsidies for about 6.4 million Americans knew that three outcomes were possible—5-4 for the plaintiffs, and 5-4 or 6-3 for the government. That indicated to me a two-thirds probability of a pro-Affordable Care Act ruling.

Intellectually, that’s what I expected. Too many long-standing and widely-shared judicial precedents would have been trampled by a ruling for the Libertarian/Cato Institute’s lawsuit—including the core Chevron principle that “context matters,” and the Pennhurst principle that federal laws shall not “surprise states,” among others. With a ruling for the plaintiffs, the Court’s only way out would have been to repeat the 2000 scandalous ruling in Bush v. Gore that the Court’s decision installing George W. Bush as President would represent no precedent for any future case.

Still, it would have been foolhardy to assume any certain result from this Supreme Court. Happily, the decision was not close.