“It was high stakes — an admission that the justices didn’t see eye to eye.” — The Atlantic
Supreme Court Justice Ruth Bader Ginsburg is gone. She died Monday. As we reach the midway point of the Kavanaugh vs. Ginsburg conundrum, the federal court of appeals for the DC Circuit, confirmed Justice Gorsuch’s nomination, and the president’s announcement that he’s nominating another justice, the justice’s death is only going to trigger more questions than it raises. In the short run, the looming vacancy, with this vacancy looming over Ginsburg’s as she was around, will most likely ensure a confirmation debate, with arguments almost as vital as if she were still on the court. But how will the issue of Obamacare be viewed? In all of its complexities, this aspect of the original challenge to Obamacare can’t just be resolved by the dead member, or the historical vote.
The first step in considering this piece is that Ginsburg was not on the original, June 2013, case. The court did hear oral arguments in the case in April 2014, but the final word has been rendered by Gens. Carter v. Burwell, which Scalia invalidated. But as we know, Clinton’s appointee as solicitor general, Amalya Kearse, was the appellant for the plaintiffs in that case — the administration’s sponsor, the Department of Health and Human Services (HHS).
That she made arguments in this case in 2014 does not necessarily mean that Ginsburg would have voted to uphold the law had it been left in place during her final term on the court. It certainly means that she wouldn’t have considered the case, at least at that point. Instead, the plaintiffs — which were largely African-American, and used the old TANF programs — appealed to the DC Circuit. To Gonzales v. Raich, the same question that would now apply to the Obama-era Obamacare, and which Carter and Gorsuch legalized, would be first in line, given the scale of their arguments in that case.
The question, therefore, is how the Obama-era law would be viewed by the justices in relation to the law of the DC Circuit’s earlier case. Justice Antonin Scalia’s death has led the administration to begin pushing back on the question, with White House officials insisting that both cases would be precluded from consideration had there been a Republican appointee as solicitor general. On the other hand, Justice Samuel Alito once ruled, in another Carter v. Burwell challenge, that the other case could not be argued at all because of the Supreme Court’s gift that reappointed lifetime appointments were irrelevant to the subject matter of judicial ethics cases. It’s likely that, at least in the low-severity circumstance in which Kennedy’s retirement would have endangered the president’s desire to reappoint the entire court, Ginsburg’s late ruling may have had a “chopping board effect” here, and that the administration will continue to demand for this case as the ultimate test of the administration’s grasp of judicial oversight.
However, no legal mandate exists for the DC Circuit to decide the merits of this case without at least a single Supreme Court justice on the bench. The DC Circuit, which has preserved the age-old precedent of passing such cases through a three-judge panel of judges, is not a quorum of three justices. That means the DC Circuit cannot in any form review whether a government entity challenged on its need to provide health insurance, on technical grounds, is successful — a hurdle the district court may appear to have set against the sort of clinic health care subsidies that the lawsuit sought to invalidate.
Read the full story at The Atlantic.
Watch the special coverage of Justice Ginsburg’s death on The Weekly Standard.Also this week: For a missed opportunity to tackle the most important issues, these two years were for the __________
This article was originally published on The Word blog.