COMMENTARY

Necessary finesse

Aghast conservatives express dismay that George W. Bush’s nominee for chief justice of the U.S. Supreme Court would lend the imprimatur of his conservative leadership to last week’s ruling saving Obamacare again, and probably permanently this time.

They need to get over it. Good judges don’t always do what their political base expects, indeed demands. Thank goodness.

Sometimes justice isn’t dispensed politically. Often it is. But not always.

Chief Justice John Roberts explained very well in his confirmation hearing in 2005 what he would do in cases such as the one decided last week.

What he did last week was acknowledge the obvious congressional intent of the Affordable Care Act rather than try to kill the entire historic reform because of a single word.

Roberts agreed with the four liberals and Anthony Kennedy to fashion a solid 6-3 ruling saving Obamacare. Then he took it upon himself to write the majority opinion.

And that opinion was that Congress of course intended to subsidize all premiums bought on new health-care exchanges for persons of low to low-middle incomes—even if a phrase in the massive law referred to subsidizing premiums on a “state” exchange without mentioning situations in which policies were bought on the federal exchange because some states declined to set up their own exchanges.

In some ways the ruling was by a unanimous vote of 2-to-0. The four liberal justices were going to save Obamacare. The three strident conservatives were going to kill it. That left Kennedy and Roberts to break through politics and do the actual judging.

Kennedy would have saved Obamacare by himself, at 5-4, but Roberts might have wanted to strengthen the action by his alliance.

But the fact is that had telegraphed his view in that confirmation hearing.

He said then that judicial interpretation of a statute must rely first on the plain text. But if there is ambiguity in the text, and in the application of that ambiguous text in the context of the full law, then, he said, a judge’s job is to seek out a best judgment as to congressional intent.

Conservatives thought they could kill the biggest statutory reform of a generation because of a single word, a technical slip. But that would have been an egregious injustice.

Plainly, the Congress—or the Democrat-only majorities—intended in the law to try to make the new system work by subsidizing premiums for lower incomes. Clearly, Congress did not intend to provide those subsidies spottily and unequally and inadequately.

Conservatives will say there was no ambiguity, that “state” means “state.”

So let’s go to the dictionary. The word “state,” in noun form, means, by the second listed definition: “A nation or territory considered as an organized political community under one government, as in ‘Germany, Italy and other European states …’”

That’s enough ambiguity right there to force the two deciding justices to consider the fuller context of what was clear congressional intent.

Meanwhile, back in Arkansas, Gov. Asa Hutchinson pretended in an official statement to be distressed by the ruling and chagrined over the lengths to which the Supreme Court had gone to contrive salvation for Obamacare.

Actually, Asa was known among insiders to have fretted about what to do at the state level if about 50,000 residents of the state lost their health insurance. He was known among insiders to be contemplating the arduous political undertaking of trying to persuade a majority of this Legislature to create a state exchange.

All of that was in the context of needing the status quo preserved so that his health-care task force could save some adapted version of the private-option form of Medicaid expansion, which hospitals and the state budget need.

Most likely, the task force will seek a new federal waiver available in 2017 to do an exchange in our own conservative way.

Asa’s challenge, daunting enough already, very well could have collapsed with an adverse Supreme Court ruling.

So Hutchinson needed last week’s ruling. And he also needed to say he didn’t like last week’s ruling.

That’s the necessary finesse of a difficult job at a volatile time.

Asa needs to keep conservatives ideologues happy with him so that he might maintain some hope of their grudgingly helping him fashion a pragmatic government solution.

He also may need for conservative ideologues not to have read this far into this column.

Maybe I lost them at the start. At hello.

John Brummett’s column appears regularly in the Arkansas Democrat-Gazette. Email him at jbrummett@arkansasonline.com. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.

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