As if there were any doubt about where the four liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) would come down, their questions made clear: Let customers on exchanges established by the federal government enjoy the same subsidies as those who buy on state-run exchanges.
On the other side, Justices Antonin Scalia and Samuel Alito were similarly unconstrained about where they’re heading: the law says subsidies are available on an exchange “established by the state”; that language doesn’t cover federal exchanges; and if Congress didn’t mean what it wrote, it can clean up its own mess. Justice Clarence Thomas stayed silent, as usual, but he can safely be counted to join them.
That leaves Chief Justice John Roberts, who was uncharacteristically quiet. If I had to guess, Roberts is less than pleased to find this political hot potato back in the lap of a court he devoutly wants the public to see as nonpartisan. Further, having been identified, and assailed by conservatives, as the late-deciding fifth vote to uphold the Affordable Care Act last time around, Roberts wanted to avoid any soupçon of hand-tipping.
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