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August 21, 2014 9:49 AM The Effort To Drag SCOTUS Back Into Obamacare

By Ed Kilgore

If you were wondering about the status of the lawsuits challenging the availability of premium tax credits to those securing health insurance on Obamacare’s federal purchasing exchanges, there’s a fine summary available from the New York Times’ Linda Greenhouse.

To make a long story short, conservative sponsors of the suits are frantic to head off a full D.C. Circuit review of the three-judge panel decision in their favor that is their chief victory in this long battle. They figure they’d lose the review, and worse yet, lose the different-circuits-saying-different-things rationale for a SCOTUS review:

[T]he opponents’ effort is trained on persuading the D.C. Circuit not to grant rehearing or — if that effort fails — to delegitimize a grant of rehearing in the eyes of friendly Supreme Court justices. The conservative blogosphere has been buzzing with messages to the appeals court, bank shots intended to be read by the justices, or at least their law clerks. Carrie Severino, a former clerk to Justice Clarence Thomas who blogs for National Review, wrote earlier this month that “clearly this type of case is exactly what the President had in mind when he made his court-packing blitz last year.” Would the new judges be “willing to take the fall for the president in this case,” she wondered: “Now those judges will have to decide whether they want their first high-profile act on the court to be one that is baldly political: overturning a meticulously reasoned decision that overturned the IRS’s attempt to rewrite the Affordable Care Act. It would make the new judges look like presidential pawns who are attempting to save his bacon, lowering them to the level of the disgraced and politicized IRS itself.”

If that doesn’t work, then there’s the problem the Supremes might insist on a full Circuit Court review before intervening. And in that respect, if the rapidly increasing certainty that SCOTUS will take on the constitutionality of state same-sex marriage bans this very year is potential good news from some conservatives, others may have reason to deplore it. Unless you project revolutionary intentions onto the Court’s narrow conservative majority, it’s not real likely they’d welcome the opportunity to kill Obamacare and marriage equality in the same term—with a potential review of Roe v. Wade right around the corner. If that’s how things turn out, you’d best believe that for the first time the composition of the Supreme Court will become a serious issue in the next presidential campaign.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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