“History gives clues to Chief Justice Roberts’ thinking on new Obamacare case”

I have written this oped for tomorrow’s Los Angeles Times. It begins:

The Supreme Court’s surprising decision last week to hear a new challenge to the Affordable Care Act has once again focused attention on Chief Justice John Roberts, who cast the deciding vote in a 2012 decision that saved Obamacare from being declared unconstitutional. Many court watchers expect that he will once again be the swing vote in deciding a case crucial to the healthcare law, this one involving questions about who qualifies for subsidies under the law.  But Roberts’ vote in a recent voting rights case suggests he might not step in to save the health law this time.

It concludes:

Even if Congress were to come together in a bipartisan way to override some statutory interpretations of the Supreme Court, there is no way it is going to override the Supreme Court on the Affordable Care Act. The House has voted dozens of times to repeal the healthcare law in its entirety; there is little chance it would step in now to save a law its members have so long maligned.

Roberts can point to many past cases in which court decisions have initiated a “dialogue” with Congress, which then stepped in with legislation to correct what it saw as errors in the court’s interpretation of congressional statutes.

In today’s fraught political environment, court-Congress dialogues are not generally possible.  But that might not stop Roberts from citing the possibility of such a dialogue  — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.

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