Obamacare Saved at Supreme Court Again

This lack of standing was an issue Chief Justice John Roberts and Justice Clarence Thomas brought up in the oral arguments by posing several hypotheticals. Let's say Congress passes a law saying everybody has to mow their lawn once a week, and they even make a lot of findings about why that's a good thing. You know, it makes the country look neater, you get fresh air if you have to do that, supports the lawnmower business. Um. And but the fine for violating it is zero zero dollars. Um. Do

they have standing? I assume that in most places there is no penalty for wearing a face mask or a mask during covid um, but there is some degree of opprobrium if one does not wear it in certain settings. Joining me is Neil Kincaff, a professor of constitutional law at the Georgia State University College of Law. Why is seven month wait to hand down this decision which is seven to two and just sixteen pages long. That's a

great question. I wish I knew the answer. Maybe someday the conference notes will tell us what was really going on, because you're right, it's seven to two decisions and it's on a technicality, really on standing, and so why did it take so long? And you can only imagine the justices were actually going back and forth about the merits and then decided to instead resolve it on this jurisdictional ground. Yeah, so tell us why the court decided as it did.

So it ruled that the parties who brought the case didn't have the authority the jurisdiction to bring the case. So in order to bring a case, you have to be an actually injured party. So it can't be that you just think Obamacare is unconstitutional or you think the government is doing something that violates the law that doesn't allow you to bring a lawsuit, you have to be actually personally harmed by the government's action, and then if you are, you can say I'm harmed and the government

is acting on constitutionally, Court, please order a remedy. And so what the court set in this case is that the plaintiffs there were two individuals and a set of twelve states. So the Supreme Court set, you haven't been directly harmed by anything the federal government has done. And if you pay attention to what the substance of the case was about, it's easy to see how that was

the case. What they were complaining about is that Congress in seventeen amended Obamacare to move the provision imposing a penalty on anyone who didn't buy the required insurance. And so what you had was this odd situation of two individuals who are complaining that there's a requirement that they buy insurance, but there's no actual penalty or anything that happens to them if they don't go ahead and do it.

So the court said, you're not actually harmed. And then the states made an even otter argument, saying that their costs of running their state would go up because they have to run these insurance programs that cover people under Obamacare. The problem is, once you eliminate the penalty for not signing up for it, it's hard to see how the

state is being harmed. In fact, if that's their concern, you would think removing the penalty helps them because now people who don't want it aren't going to sign up for it to avoid a penalty. So, if anything, it would reduce the state's costs. So the Supreme Court said, as to both of these parties, you're not personally injured. You're like anybody else who's just out there complaining that

they don't like Obamacare. Because you don't have a direct personal stake in this, you are not allowed to bring this lawsuit. The Chief wrote the opinions of the Court in the other Obamacare decisions and got a lot of criticism from conservatives. Is it surprising that he had it off this decision to Justice prior to write. So it may be that the Chief has decided that he's gotten enough blowback from Obamacare that may have something to do

with it. The Chief, because he's in the majority, would be the one who assigned the writing of this opinion. I suspect that because the opinion has to do with standing and not with any of the merits. And it's an issue that even among the justices is considered kind of a boring technicality. So I don't think anyone was really lobbying hard to get to write this opinion. What did you think about Justice Alito's descent? He called it the third installment in our epic Affordable Care Act trilogy.

So I just think it shows how contentious the issue is on the Court. I mean, I think it also sort of betrays that Justice Alito isn't really viewing this as a law issue, That this is for some of the justices, the kind of policy issue that you might hear debated and argued about on the cable news shows, and that it plays on that level with the justices. And I certainly think Justice Alito's dissenting opinion reads that way. It reads like it's written for that kind of an

audience rather than your standard Supreme Court opinion audience. Is the cloud over Obamacare gone? Now? Are the legal challenges behind us? Well, it's hard for me to say their entirely behind us, just because there is so much interest in it, and therefore there is so much money available for lawyers and groups that want to challenge it, so it's possible we'll hear more of it. I would say that I think this is the Supreme Court telling people,

we've really don't want to hear about this anymore. Go away. We'll see if they take that advice. Neil. That's Neil Kinkoff of the Georgia State University College of Law. Cases on abortion and gun rights are already on the Supreme Court's docket for next term, and now the Jostices are considering adding a third blockbuster case over whether to ban

colleges from considering race and admissions. The case over whether Harvard College intentionally discriminated against Asian American applicants has been the most high profile affirmative action case in years, drawing protests from both sides. It's an important time to be critical of Harvard and to look at how affirmative action policies have impacted or discriminated against Asian American communities. Chinese Americans support affirmative action. We see how important it is

to recognize adversity. The Jostices are asking the Biden administration to weigh in on the Court of Appeals decision that upheld Harvard's policy of using race as a factor in admission as a legitimate way to diversify its student body. Joining me is Susan Sturm, a professor at Columbia Law School. Let's start with the big question, what do you read into the Supreme Court asking for the Biden administration's view on the Harvard case. You can't fully predict what the

justices are about. My sense use that number one, they're trying to really be thorough about the consideration. So this is a step of considering the perspectives of the United States. When the administration has changed, they get the opportunity have the administration way in that has both the appearance of full consideration at every step. And also some justices may be really interested in learning something. This could be a formality, It could indicate more of a willingness to actually accept

the case. It could be that there are some justices who feel they would get some information that would help in their informal deliberation. So let's go back. Tell us

about the First Circuit's decision. First Circuits decision upheld the Harvard admissions approach, which considers diversity as part of a compelling interest, and the First Circuit found that Harvard did not take race into account in a way that ran a foul of the Equal Protection Clause, and that considering race as part of holistic review is consistent with the Constitution.

That was rejecting the arguments of Stutes for Fair Admission, suggesting that as they are doing before the Supreme Court, number one, suggesting that any consideration of race would violate Equal Protection Clause, and number two that Harvard in this case considered the race of Asian American applicants in ways that demonstrated animal The Circuit rejected those arguments and really, in a heavily factual analysis found that had additions approach

past constitutional muster. So the plaintiffs here, the students for Fair Admissions, are outright asking the Supreme Court to overturn the landmark two thousand three Grutter case. Yes, they are. And part of the reason that there's there's a concern about the decision to accept sort is that this is a case that relatively soon after that endorsement of Bruder, and the facts are fairly strong in this case and Harvards we happen and have been so found both by

the Trial Court and by the First Circuit. So there is a concern that with the change in the composition of the Court that if the Court were to accept sort if, that might signal a willingness to either cut back dramatically the circumstances under which colleges and universities can explicitly consider race, or to eliminate that consideration completely. And this would be a deeply problematic decision on the part

of the Court. Why I'm curious about the Court asking the Biden administration for its input is that it seems pretty clear that the Biden administration is going to disagree with the position the Trump administration took supporting this lawsuit, because the Biden administration has already dropped the Yale lawsuit

that the Trump administration brought. It's a good question, and again it's difficult to know whether the request is to really get updated views on the part of the government that will then inform a reconsideration internally to the Court.

That could be one signal. Another signal is just the interest of thoroughness, and I think Chief Justice Robert is one who is interested in conveying an idea of legitimacy on the part of the Court, even as it might be an activist court that's really cutting back on the

court role in affording racial justice. So this could be a process e Z. We've offered every opportunity at every step of the way, and this is a circumstance under which we still find it appropriate to change, to step back on what's called starry decisive, which is upholding settled precedent.

Or it could be an effort to really seriously think about whether this is a time kind of play to open up these questions about the propriety under the Constitution as the Court we said of taking race into account. So it was just in I believe that the Court reaffirmed the consideration of race in college admissions, but that was by a four to three vote, and it's a really different court. Now. Tell us what the court decide

in and how it's different now. The Court decided in that, first of all, reaffirmed that diversity is a compelling interest, which is what's required to take race into account under

the Equal Protection Clause. That holistic review is warranted and permitted under the Equal Protection Clause uh, and that higher education institutions continued to be entitled to deference given that they are the ones who the best judges of the academic requirements, but that courts will give a searching review to how that judgment is exercised, and that there needs to be an evidence based justification for taking race into account.

So all of that was upheld and reaffirmed by the Court in twenty seen, as you said, in this four three decisions. So on that court, the three justice who were in dissent are still on the court, that's Chief Justice John Roberts and just this Clarence Thomas and Samuel Alito. But two of the justice who were in the majority are no longer on the court. That's, of course, the late Justice Ruth Bader Ginsburg and Justice Anthony Kennedy who retired. So the court now is really different from what it

was then. Do we know how the three new justices regards taking race into consideration and admissions? There are some indications from their prior decisions that these new justices have embraced this kind of color blindness approach, that looking at race as uh something that cannot be taken into account

at all. Having said that, the configuration of the Court is different, and I think there also is the possibility that what this means for the center of the court is that there may be a concern learn about thinking about starry decisive, namely the upholding of precedent in a situation in which the world has not changed except for

the composition of the Court. So even though we have new justices, it's not a foregone conclusion that that will mean that the justices that were in the dissent in the opinions will then view this as the time to really cut back on or retract from a well established precedent. And there are examples of the Chief Justice, for example, upholding a decision that he might personally disagree with, but that is clear precedent for which there is no established

spaces for cutting back. So we do have three new justices, at least two of whom might be very willing to take a radical approach to constitutional interpretation and to a more activist approach that reflects their own views of the Constitution. I don't think that tells us how the Court would actually rule. I think there's some possibility that there would be cutting back, but not an overturning of president with

this new majority. I want to talk a little bit about Edward Blum, who leads to students for fair admissions. He was also behind the lawsuit behind the Shelby County decision which curtailed voting rights. Is he a one man the activist or is this is a vast organization? We

have to give him credit. He's been very effective, um as a small organization that has been able to in part because of the change in the politics of the nation and the election of Donald Trump and the shift in the judiciary uh that has followed because of the judges that uh that uh former president appointed. That that he has been able to really leverage a small amount

of resources to have a big effect. And part of what he's done is really used the court system to compensate for the fact that he is a small organization. Uh that Uh there isn't a sense that that this is a h A large, you know, populous movement. There have been very wealthy people who have financed his organizations so that they can uh martial uh legal resources to

fight this battle. Um And UH, so he's been he has been able to be quite effective marshaling the resources biggal resources heavily financed by wealthy uh contributors uh and then using the the shift in the in the composition

of the court to have really outsized impact. So if you consider that there's no split in the circuits that the Supreme Court has to resolve, and the Court is already going to be considering next term the controversial issues of abortion and gun rights, what would be your guests as to whether or not the justices will take this case. I think it's really anybody's guests as to whether the Court will take this I think that this depends in

part on the appetite of the four justices. Two, as you've indicated, placed the Court smack in the middle of the most polarizing and controversial issues of our time. And to do that in a situation when there would be no question that were the Court to dramatically cut back on or overturn the consideration of race in admissions, that the Court would be taking a radical activist stance that

is contrary to start decisive. So the question is does the Court have an appetite for that with new justices on the bench and with these other issues that the Court will also be faced. And it's hard to say because we have this new composition of the court and that question about how the Court is going to construct its role and its legitimacy with the populace is up for grips. The law in this area is going to

really get made on the ground. And the biggest concern that I have is that whatever the Supreme Court decides, that high right institutions and others will addicate responsibility for dealing with issues of race in a way that outside of the judiciary have really engulfed the nation. There's a risk of the court system becoming even more out of touch with the realities of our time and the demands

of the national legional reckoning that we're basing. Uh. And so I really hope the Court does not take this case for all the reasons we discussed, and I really would urge higher education leaders and the lawyers counseling them to recognize that business an area where law will be made in the day to day decision of higher education institutions as much as posits the Frame Court. Thanks for being on the show, Susan. That's Susan Sturm, a professor

at Columbia Law School. And that's it for this edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, slash Law. I'm jud Brasso and you're listening to Bloomberg