The skirmishing ahead of the U.S. Supreme Court's King v. Burwell decision suggests we are in for a period of prolonged political turbulence should the high court strike down premium subsidies in the 34 states using the federally run exchanges.
One could take little solace from HHS Secretary Sylvia Mathews Burwell's testimony last week that the administration has no contingency plan for a negative ruling. President Barack Obama's comments at the G7 Summit left no doubt the president plans to stick by his signature legislative achievement.
For his part, Rep. Paul Ryan, chairman of the influential House Ways and Means Committee, declared that the only basis for compromise was returning the individual insurance market to its pre-Affordable Care Act status quo. The GOP plan rejects the individual and employer purchase mandates and demands the administration abolish the law's coverage adequacy rules. No responsible insurance executive would accept that proposal, much less advocates for Americans without coverage.
A negative ruling would put an early end to the silly season and make healthcare the top political issue in the runup to next year's primaries. It would turn the presidential race as well as 34 Senate races and 435 House races into referendums on how best to achieve universal health coverage—or whether, more than a half century after other industrialized countries erected their social safety nets, the U.S. should even try.
For many, it would undermine the political legitimacy of the John Roberts court and make it the target of intense public vitriol, especially from the left side of the political spectrum that still remembers Bush v. Gore. Most legal scholars agree that a negative ruling radically reverses how even the most conservative justices have historically interpreted statutes and treated the states.
Given the likelihood that at least two seats on the high court will open up over the next four years, a negative Roberts court ruling would also make the stakes in next year's election far more apparent to people who don't normally think about the Supreme Court when they vote. As former New York Times Supreme Court correspondent Linda Greenhouse noted in her review documenting the radical nature of a negative ruling: “The court has permitted itself to be recruited into the front lines of a partisan war.”
If the court votes no, don't be surprised by the political consequences—or the judgment of history.