Brett Kavanaugh Isn’t the Real Threat to Obamacare

John Roberts is.

Supreme Court Chief Justice John Roberts.
Supreme Court Chief Justice John Roberts.
Tom Williams/CQ Roll Call

One of the chief arguments Senate Democrats are making against Brett Kavanaugh’s nomination to the Supreme Court is that he poses an existential threat to the Affordable Care Act’s protections for those with pre-existing conditions.

Democrats point, specifically, to a case filed in Texas by numerous Republican-controlled states threatening many of the law’s popular reforms. That case is just beginning to work its way through the system, and though many legal experts view the case as dodgy on the merits, some other weak challenges to the ACA have made it to the Supreme Court since the law was signed in 2010. One, based on a modest drafting oversight in the statute, was especially tedious, and was rejected comfortably. But a 2012 case that challenged the constitutionality of the law’s individual mandate came only a hair away from succeeding.

But that hair wasn’t the usual swing vote, retiring Justice Anthony Kennedy. Chief Justice John Roberts was the one, in that case, who sided with the liberals to uphold the mandate, and with it the rest of the law’s individual market regulations, on the basis that the mandate “may reasonably be characterized as a tax” and within Congress’ power to levy. Kennedy, meanwhile, joined the rest of the conservatives in being ready and willing to gut the law.

Kavanaugh is not replacing Roberts, though. So how would the new justice change the status quo, on this issue, if the conservative swing vote on the issue remains on the court—while one of the guys who was ready to dunk on the ACA would be replaced by another guy who would presumably be ready to dunk on the ACA?

Democrats I spoke with on Wednesday have a point: You can’t bet on John Roberts to save the law this time around. If he’s feeling frisky, he could side with conservatives on this latest Texas case, which again concerns the individual mandate.

The argument from Texas et al. is written almost specifically as a note to Roberts. In his 2012 opinion, Roberts wrote that while the mandate doesn’t pass constitutional muster through the Commerce Clause, it does as a tax. “This process yields the essential feature of any tax,” Roberts wrote, in that “it produces at least some revenue for the Government.”

The plaintiffs in the new case, then, turn Roberts’ words back at him: Since last year’s Tax Cuts and Jobs Act zeroed out the tax penalty associated with the mandate, the mandate lacks its constitutional basis. They then argue that the mandate can’t be severed from all the protections it was designed to help pay for, like the requirement that insurers offer plans to those with pre-existing conditions. So those have to be tossed too.

Legal experts, including those who have supported previous challenges to the ACA, don’t think much of this suit. There’s a question of whether the plaintiffs have standing, for starters. Then there’s the issue of congressional intent. Vox’s Dylan Scott, paraphrasing libertarian legal scholar Jonathan Adler, put it like this: “Yes, Congress A passed the mandate and the insurance reforms together, to work together. But Congress B just repealed the mandate and kept the insurance rules. Congress revises its laws all the time, and the most recent revision is the proper way to understand how Congress intends the law to work. And with that understanding, the new conservative argument doesn’t hold up.”

Maybe the argument doesn’t hold up, but that doesn’t mean that a politicized conservative majority on the Supreme Court would never go for it. Perhaps Roberts is sick of being the conservative traitor who joined up with the Notorious RBG to save the Affordable Care Act, and he takes the convoluted opening that Texas offers to get back in the good graces of conservative freedom lovers everywhere.

“Roberts hung his hat on the mandate,” Senate Democratic Leader Chuck Schumer said at a press conference on Wednesday. “Now that the mandate has changed, I wouldn’t count on Roberts. Nor should we have to.”

That’s fair. But the Kennedy-to-Kavanaugh switch wouldn’t change that scenario. Kennedy was willing to gut Obamacare through a challenge to the mandate in 2012, and there’s no reason to believe that he wouldn’t have been there again in the Texas case. If you assume, reasonably enough, that Kavanaugh would also side with the conservatives in the Texas case, he would just be doing the work that his predecessor was already prepared to do.

Senate Democrats are correct that if you support the ACA’s individual insurance-market reforms, you should be terrified about what the Supreme Court might do to them with this new case. And from their perspective, they’re correct that no justice who’s prepared to strike down the ACA deserves their confirmation votes. But the question on which the ACA’s future hinges, before and after Kennedy’s retirement, is whether Justice Roberts can be swayed.