Excerpted from The Daily Caller: Justice Anthony Kennedy’s comments in a run-of-the-mill budget meeting Monday may have signaled how he intends to vote in this year’s biggest Obamacare lawsuit over the legality of federal premium subsidies.
In a Monday budget request before the House Appropriations Committee, Justice Anthony Kennedy, typically the swing vote on the Court, made comments that could suggest he’s leaning in favor of the plaintiffs in King v. Burwell.
it may turn out that the Court may choose to not consider the likelihood of Congress restoring the subsidies at all. While he wasn’t overtly discussing King v. Burwell, Kennedy’s comments on Monday certainly suggested that it isn’t the Court’s role to predict what a certain Congress would do in response to their cases.
“We routinely decide cases involving federal statutes and we say, ‘Well, if this is wrong, the Congress will fix it.’ But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes,” Kennedy said Monday. ”That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.”
Court experts immediately grabbed onto the comments, which were in response to a question from Florida GOP Rep. Ander Crenshaw about “politically-charged issues” before the Court, as a likely reference to the furor over King v. Burwell.
Josh Blackman, an assistant professor of law at the South Texas College of Law who specializes in the Supreme Court, points out that strategy to put pressure on the Court due to Congress’s reaction even made its way into the courtroom — much to the chagrin of at least one justice.
Kennedy made no reference to the case, and Blackman stressed that it’s impossible to know exactly what the justice was thinking. But “he seemed very much directed with how he wanted to handle that question,” Blackman said. “The fact that he said this makes me think this issue is on his mind.”
The Supreme Court’s decision in the case is expected in June. Continue Reading