Out here in Southern California we have that meteorological phenomenon known as June Gloom – from late May through the Fourth of July, the sun doesn’t come out until four in the afternoon, for maybe thirty minutes. Then the low clouds roll in off the cold Pacific again, day after day after day. It’s damned dark here. At dawn the Hollywood Hills are half-hidden in fog – which is quite picturesque, actually. The air is thick and still all day – the place is subdued – there’s no glitz. Of course we don’t tell the tourists about this. If some rube from Iowa asks what the hell is going on, well, they were just unlucky. There’s not much one can do about the weather. These things happen – or maybe it’s their fault. Some folks are just unlucky.
Make them feel guilty. After all, tourists do come to Hollywood and ride around in those little open-air busses, on those Homes of the Stars tours, to feel guilty for not being rich and famous and infinitely cool themselves. They’ll find themselves staring at some iron gate in Beverly Hills. They’ll never be remotely cool. The deep gloom must be their fault too.
It’s not their fault. June can be gloomy everywhere. It’s not quite summer. Some kids are still in school. People keep working in their offices, staring out the window, as work slows down and they wait for their week or two of vacation, later, if they dare take vacation. Those who take vacation aren’t the go-getters. The job might not be there when they get back. And in Washington, the political year is winding down. Congress doesn’t do anything in the summer. They all go home, and of course the Supreme Court ends its session in June. They won’t be back until the first Monday in October. June is also where they add their own gloom. The very end of June is when the Supreme Court hands down the big decisions, the ones they really didn’t want to tackle but had to tackle – the unpleasant stuff, where somebody is going to be very unhappy. They put that off as long as possible, and the nation waits, feeling tense and gloomy. Will the sun never come out? Someone has to clear the fog.
That’s what the Supreme Court will do, even if someone is going to be unhappy. They will rule on whether four words mistakenly inserted into the Affordable Care Act override the intent of the Act that is obvious in all the other words, in all nine hundred pages of the law. That would destroy Obamacare. Almost seven million people who just got health insurance will lose it. The insurance markets will collapse. Republicans, who couldn’t stop the law, will have their revenge, but the price to them will be high. Millions will be more than unhappy – but those four words are in there. Republicans now aren’t sure about what they wished for.
The other ruling will be on gay marriage – whether banning gay marriage is unconstitutional, everywhere. Gay marriage is legal in thirty-four states now, as lower courts have ruled those bans are clearly unconstitutional in large groups of states. Now the Supreme Court has been forced to rule on the matter in all states, nationally. That’ll lift the fog, even if most of the country is no longer hot and bothered by gay marriage in the slightest now. The Supreme Court could rule that gay marriage is just fine, and probably will – and social conservatives will be more than unhappy. Mike Huckabee has already said the Supreme Court has no right to decide what is constitutional at all. Who do they think they are? Scott Walker has promised a new constitutional amendment, changing the Constitution itself, if the Supreme Court does what everyone expects. Good luck with that. We don’t pass those anymore. Someone is going to be very unhappy.
As for Obamacare, the Los Angeles Times editorial board says the situation is this:
The lawsuit, King vs. Burwell, is one of several filed by opponents of the 2010 law that challenge how the Obama administration interpreted one line buried in the 955-page statute. The plaintiffs argue that the plain language of the provision limits subsidies to the states that established their own exchanges, as California and 15 others have done. Although one federal appeals court agreed, the one hearing King’s case said such an interpretation makes no sense in the context of a law designed to make health coverage available to all Americans. … And if the justices agree with King, more than 9 million people will lose their subsidies the moment their decision goes into effect.
That would be a terrible result, forcing many lower-income Americans to go back to emergency rooms for the care they urgently need but can’t pay for. Those costs would ultimately get passed on to everyone who has insurance. Meanwhile, the loss of subsidies would drive many younger and healthier people out of the individual market, causing premiums to shoot up 35%, one study estimates. Several polls in recent months have shown that most people do not want the subsidies to evaporate, even if they have other complaints about Obamacare.
The simplest fix would be for Congress to change the disputed provision to clarify that subsidies are available in every state, but that’s not going to happen: Republican members of Congress aren’t willing to do anything that extends the life of Obamacare. The same problem is likely to prevent legislators in many of the 36 affected states from setting up their own exchanges.
Then there are the Republicans:
To avert the looming crisis, several Republicans in Congress have floated plans that would either act as stopgap measures or permanent replacements for the 2010 law. In addition to continuing the subsidies for some of those eligible today, all of these proposals would preserve some of the most popular insurance reforms of the 2010 law, particularly the ban on denying coverage to people with preexisting conditions, while repealing the least popular requirements. The problem in each case is that they would leave too many people uninsured while also creating new problems for everyone else.
The most prominent of these proposals is a bill by Sen. Ron Johnson (R-Wis.) that is cosponsored by more than half of his Republican colleagues, including Majority Leader Mitch McConnell (R-Ky.). Johnson describes the bill, S 1016, as a bridge between Obamacare and a new approach to healthcare reform that Republicans would try to enact after President Obama leaves office. It would allow subsidies to continue in states using federally operated exchanges until September 2017, but it would deny them to anyone in those states who doesn’t already have a subsidized policy. That would freeze out the surprisingly large number of lower-income people who move in and out of eligibility as their incomes fluctuate. To help those consumers, the bill would allow states to approve less comprehensive insurance plans than the 2010 law allows. Cheap policies with limited coverage, however, won’t be much help to anyone who doesn’t stay healthy and injury-free.
The whole point was to get rid of cheap policies with limited coverage, the crap-insurance that did no one any good, but there’s more:
Johnson’s bill would continue requiring insurers to cover everyone regardless of preexisting conditions while eliminating the requirement that individuals and businesses obtain coverage. Ending the individual and employer mandates may be shrewd politically in a GOP-controlled Congress, but it would create an unsustainable insurance system. With no penalty for not carrying insurance, the bill would encourage people to drop their policies until they became sick, leaving insurers to cover only those people who needed treatment. Over time, premiums would skyrocket as a growing number of younger and healthier people cut their costs by going uninsured.
We’d be back to where we started, or things would be worse, and the Washington Post’s Dana Milbank notes this:
President Obama uttered more than 3,600 words on the stage of Washington’s Marriott Wardman Park ballroom on Tuesday, but his message could be summed up in three: You wouldn’t dare.
He was speaking not to the hundreds of hospital administrators assembled for the Catholic Health Association’s conference but to five men not in the room: the conservative justices of the Supreme Court, who in the next 21 days will declare whether they are invalidating the most far-reaching legislation in at least a generation because of one vague clause tucked in its 2,000 pages.
Obama’s appeal to the justices, devotees of judicial modesty all: Do they really wish to cause the massive societal upheaval that would come from killing a law that is now a routine part of American life?
That’s a good question:
“Five years in, what we are talking about is no longer just a law. It’s no longer just a theory. It isn’t even just about the Affordable Care Act or Obamacare,” he said. “This is now part of the fabric of how we care for one another. This is health care in America.”
Without mentioning the looming decision, Obama warned of its devastating potential. “Once you see millions of people having health care, once you see that all the bad things that were predicted didn’t happen, you’d think that it’d be time to move on,” he said. “It seems so cynical to want to take coverage away from millions of people, to take care away from the people who need it the most, to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”
Obama was lobbying the court, but he was on firm ground:
The Kaiser Family Foundation, which tracks public opinion on the matter, found in April that more Americans had a favorable view of the law than an unfavorable view (43 percent to 42 percent) for the first time since 2012. That difference is not statistically significant, but the favorable view is up 10 points since the botched HealthCare.gov rollout in 2013 and the unfavorable view is down seven points. Forty-six percent favors keeping the law as is or expanding it, compared with 41 percent who favor scaling it back or repealing it.
More evidence of the acceptance of Obamacare: Health care is fading as an issue. Gallup found last month that only 5 percent called it the country’s most important problem. That compares with 26 percent in September 2009.
Certainly, those numbers could change if premiums jump as expected. But the recent improvement in the law’s standing comes even though most Americans aren’t aware that the law has cost the government less than forecast.
Milbank’s own lobbying:
That’s not just judicial activism – it would be a judicially induced cataclysm.
Such a cataclysm has no place in the catechism of Sister Carol Keehan, head of the Catholic Health Association and a key early supporter of Obamacare who broke with the Catholic bishops to support the law.
“It would be unspeakably cruel,” she said when I asked her after the conference Tuesday what an adverse Supreme Court ruling would produce. Millions of people – pregnant women, cancer victims, heart patients – would lose coverage, she said. “The panic is going to spread, the confusion. It’s going to be incredibly chaotic.” And, with Congress unable to agree even on little things, the chaos would persist.
“It makes me crazy just to think of it,” Keehan said, urging me to “light a candle” as the justices prepare their opinion.
That’s touching, but Slate’s Dahlia Lithwick argues that the political considerations are just as dire:
It is never a surprise when politicians insert themselves into the life of the court, although, as Jess Bravin at the Wall Street Journal reports, Obama has made it something of an art form. But more interesting are the ways in which the court has, intentionally or not, inserted itself into the heart of the 2016 presidential election. In a way we have not seen since five justices in Bush v. Gore picked the president in 2000, the court may be making itself the cornerstone of the upcoming election.
The Bravin article is behind the Journal’s paywall – so you’ll have to take her word on that – but this is about the 2016 election:
Despite the justices’ mandate to ignore the politics of the day, there must be some real pressure on the court – and perhaps more specifically the conservative justices – to contemplate the potential political fallout from at least one of the term’s blockbuster cases: the Obamacare challenge. There is an emerging consensus, across ideological lines, that if Obama loses on King v. Burwell in the next three weeks, the bigger loser will be the GOP. As the National Review put it last week, “If a Supreme Court ruling against Obama turns into a hollow victory for conservatives, congressional Republicans could be in for a bloodletting.”
Why? If the court rules that only those on state-created exchanges are eligible for subsidies, and Republicans in the statehouses and on the Hill don’t find a fix, nearly 6.4 million Americans would be impacted, and their health care costs could spike by almost 300 percent. And if they do come together to build a fix? As former GOP strategist John Ullyot told the Hill, “Republicans are in the position of having to create a fix that would be seen as a problem by their most conservative supporters.” Propping up Obamacare is the last thing their base wants to see them doing, especially in an election year – and it’s not just the mostly Republican governors, or the GOP senators who have to defend their seats in those 34 states that may see their exchanges collapse, who are concerned.
Prospective GOP presidential nominees are also worried about what happens if millions of Americans – many Republicans – lose their health care in the next two weeks. As David Frum put it after oral arguments, if the court strikes down the subsidies in King, there will be “an ever-greater number of people for whom the risk of loss of health coverage will be an overwhelming consideration. It would seem an obvious urgency for Republicans to relieve as much of their anxiety as they can. Yet few Republicans perceive that urgency and even fewer are acting on it.”
Both Justices Samuel Alito and Antonin Scalia hinted at those same oral arguments that this urgent political and social crisis could be fixed – by delaying the effective date of the decision, or congressional action, respectively. The latter idea was met with outright laughter in the gallery.
Read her detailed account of the oral arguments – she was there – and people did laugh. Everyone knows our Congress.
As for the gay marriage cases, she refers to Greg Stohr in Bloomberg:
On gay marriage, the party’s longstanding opposition has left it at odds with public opinion. The latest Gallup poll shows record support for legalized same-sex marriage, with 60 percent favoring and 37 percent opposed. Same-sex couples can now wed in 36 states.
A Supreme Court ruling against gay marriage would set up a new round of state-by-state fights. Some of those battles would occur in court, as judges sort out the effects of earlier rulings legalizing marriage.
Other fights would take place at the ballot box. Marriage advocates could try to put the issue before voters in Ohio and Michigan, two presidential swing states where gay marriage is currently illegal.
Supporters might also look to Arizona and Colorado, states that now have gay marriage because of court rulings. A Supreme Court decision potentially would nullify those rulings, forcing supporters to turn to ballot initiatives.
The fracas would leave Republican candidates in a bind, forcing them to try to placate the social conservatives who are the key to winning the party’s presidential nomination without alienating middle-of-the-road voters who support gay marriage and who are key to winning the general election.
It comes down to this:
Ruling against gay marriage would make the issue a focal point for the 2016 general election, leaving Republicans to argue against a right supported by six in 10 Americans.
Lithwick dryly notes that “the conundrum the GOP faces in both King [Obamacare] and Obergefell v. Hodges [gay marriage] is that a conservative win would pit moderate conservatives and independents – who may have grown to like their health insurance and don’t hate same-sex marriage – against the base.”
That is gloomy, and then she adds this:
There is one more level to the chess game the conservative justices must be playing right now, as they debate over whether to plunge the Supreme Court into the epicenter of a presidential election that is bound to be as ugly and polarizing a race as any we can imagine. This one goes beyond judicial ideology, or even brass-tacks party politics, and hits at the very core of each justice’s ego. Because the justices aren’t merely poised to place their thumbs on the scale to determine which party wins the White House in 2016. Several of them may also be helping elect the president who will pick their successor.
Recall that this is a really, really old court. Justice Ruth Bader Ginsburg is 82. Justice Anthony Kennedy is 78. Scalia is 79. And Justice Stephen Breyer is 76. So when Kennedy and Scalia are pondering which formal rules of statutory construction they will deploy in reading four words in the Obamacare statute, somewhere at the back of their minds there must lurk the small, niggling thought: “Am I helping to elect the next President Hillary Clinton?” …
Now maybe none of the justices will allow this kind of insidious calculation to enter into their thinking as they set about drafting their opinions in both King and Obergefell. But whether they think about it or not, it’s hard to imagine a presidential election since 2000 that got itself up in the court’s pristine grill as much as the 2016 election will. Even justices who don’t think about politics in terms of stark wins and losses might be tempted to do so when it could mean that the president who will someday fill their seats can either dismantle their judicial legacies or bolster them.
Yes, this is precisely the kind of ugly, human, partisan politics from which Chief Justice John Roberts most wants to distance himself and his court. It’s also precisely the place – where judging meets ideology, and legacy, and ego – at which the court reveals itself when it least wants to.
No wonder they’ve been putting this off until June. And it’s no wonder the June Gloom has extended far beyond Southern California. These are dark times.