Any seasoned Supreme Court watcher will tell you that it is impossible to predict with any level of certainty what the Supreme Court will do about anything. Generally speaking, the more confident someone sounds during the course of predicting the outcome of a Supreme Court case, the less confidence you should have in their analysis. This leads directly to the phenomenon we are witnessing now in which people who are neither lawyers nor Supreme Court watchers are now predicting with total confidence how the Supreme Court will decide King v. Burwell, the challenge to the IRS Rule extending subsidies to Obamacare consumers who bought their coverage on federal (as opposed to state) exchanges.
A pretty good example of this is Brent Budowsky’s column today in The Hill. Brent Budowsky’s sole purpose on earth is to write columns confidently predicting that everything will work out great for Democrats and/or that everything will work out terribly for Republicans, and so it’s no surprise therefore to find him predicting, based on a number that he clearly pulled out of his rectal canal, that “I suggest with 90 percent confidence that Chief Justice John Roberts, who remained virtually silent during oral arguments before the Supreme Court on Wednesday, will join a majority of justices to uphold the subsidy provision of the Affordable Care Act.”
The truth, of course, is that anyone who actually knows things about the Supreme Court knows that guessing how justices will rule based on what questions they ask or whether they ask questions at all is a fool’s game at best. It’s more or less like trying to predict the outcome of the World Series based on how a team performs in Spring Training. Even people who do Supreme Court prognostication for a living tread carefully and with hefty qualifiers when wading into this territory – Brent Budowsky and other liberals who are commenting on this decision have no need to do so because they have no interest in being accurate in terms of their predictions. Their interest is solely in creating an aura of inevitability about the result.
Let’s reset the stakes in this particular game. As we have written about extensively here before, the Democrats are attempting to overcome a really terrible set of facts (from a legal standpoint) with a facade of rhetorical bravado and strawmen. The first argument advanced by defenders of the subsidies is that the portion of the law that restricts subsidies to those who are on state exchanges is a “typo.” To the extent that this argument is correct, it is irrelevant; the Supreme Court is not a copy editing service for Congress. If Congress passes a law outlawing purple suits, the Supreme Court does not have the liberty of rewriting the law to say that green suits are outlawed, no matter how much evidence exists that Congress meant to outlaw purple suits. If Congress writes a law that creates unintentional consequences as drafted, they have a very easy remedy: they can amend the law through the legislative process by passing a new bill through Congress and getting the President to sign it.
Secondly, and decidedly less importantly, this assertion has been exposed as a bald faced lie by the law’s own defenders:
This is not really a close call or a matter of reasonable dispute. Even for people who take legislative history as a thing that ought to be given great weight, the fact that Congress included a clause in an earlier version of the bill but then changed or removed it in the final version is considered to be conclusive evidence that Congress specifically desired the change in question, not that they intended the earlier version. Let’s say hypothetically that you had a bill that said when it came out of committee, “Congress hereby appropriates $10 million for the funding of studies the mating habits of pink salmon and $5 million for the funding of studies of the mating of silver salmon,” but the final version of the bill merely said “$1o million for the funding of studies of the mating habits of pink salmon,” courts (like reasonable people) come to the inescapable conclusion that the clause about the silver salmon was removed per the deliberate intent of Congress otherwise it would have remained in the bill.
Likewise if a bill comes out of committee that says “The Federal Government and the Several States shall have concurrent jurisdiction over the enforcement of this mandate” but the final bill that gets passed says “The Federal Government shall have jurisdiction over the enforcement of this mandate,” that is considered conclusive, case-ending evidence of Congressional intent to remove State jurisdiction over the enforcement of the mandate in question.
If this were an ordinary law that were not the subject of such a bitter partisan dispute, the IRS Regulation at issue would not stand a snowball’s chance in hell of surviving a court challenge. The only possible saving grace for the subsidies is that the Democrats really, really, really want them upheld and they have four justices on the Supreme Court who are more less in their pocket on any high profile case, intellectual honesty be damned, and another two who are hesitant to have the Court perceived as wading into bitter partisan disputes at all. If this were any less controversial bill the IRS would have probably given up by now and Congress would be about fixing their alleged “drafting error.” But since this bill was passed through chicanery and couldn’t possibly make it back through a single chamber of Congress as it is allegedly “intended,” the Democrats are basically reduced to publicly pleading with the Court to save them from the fact that the States didn’t really want anything to do with their healthcare boondoggle.
And since they don’t have the facts on their side, they’re depending on the false appearance of confidence to carry the day for them.