The justice who decided healthcare reform's fate

As arguments and questions swirled around him, U.S. Supreme Court Chief Justice John Roberts sat quietly at the center of the bench.

Only toward the end of oral arguments in the blockbuster King v. Burwell case in March did he ask a telling question. That query hinted at the majority opinion he wrote in June, upholding by a 6-3 vote the Obama administration's interpretation of a key provision of the Affordable Care Act. The ruling made reinterpreting that provision virtually impossible if a Republican president succeeds Barack Obama.

Roberts' influence on healthcare this year and in years past is hard to overstate. In the King case, he was one of two conservatives who voted to allow the ACA's premium subsidies in all states, which in the view of many experts saved the healthcare reform law. His written opinion was taken by many observers to mean the Roberts court is finished considering the fundamental legality of the ACA.

In 2012, Roberts provided the swing vote and wrote the majority opinion in National Federation of Independent Business v. Sebelius upholding the constitutionality of the ACA's requirement that all Americans obtain health insurance, another foundation of the law. In that case, however, he also voted to make the ACA's Medicaid expansion optional for states, which has left millions of Americans uninsured.

“Without the vote of Chief Justice Roberts, the ACA very well may not exist,” said Joshua Blackman, an associate professor at South Texas College of Law who wrote a book about the NFIB case. And a different decision in King v. Burwell would have thrown a serious wrench into the ACA, he added. “In both cases, the chief justice made clear it's up to Congress to change the ACA.”

Roberts placed No. 1 on Modern Healthcare's ranking of the 100 Most Influential People in Healthcare for 2015. He also topped the list in 2012.

There has been no other time in U.S. history when a chief justice and the Supreme Court have had such a profound influence on healthcare. “Medicare and Medicaid were enormously important, but they weren't challenged in the courts like this,” said Erwin Chemerinsky, a law professor at the University of California at Irvine. “The ACA is one of the most important social welfare laws and healthcare laws adopted since the 1960s.”

Roberts also has been instrumental in healthcare decisions that protect states from lawsuits over inadequate Medicaid payment rates and allow some private companies to avoid providing employees insurance for birth control because of religious objections.

Roberts, nominated by President George W. Bush in 2005 as chief justice, has been uniquely positioned to shape the healthcare landscape because he heads the court at a time of partisan gridlock over healthcare policy.

Conservative activists, backed by congressional Republicans, filed federal lawsuits challenging the legality of the ACA's premium subsidies. For months leading up to the decision in King v. Burwell, the healthcare industry fretted over what might happen if the court sided with the law's opponents, while Republicans cautiously awaited a ruling that would make it easier for them to roll back or repeal Obamacare. The plaintiffs argued that a literal reading of one section of the law did not allow subsidies for Americans in states that did not establish their own insurance exchanges and instead relied on the federal exchange.

Everyone expected the court's four Democratic-appointed justices to side with the Obama administration and the court's three most conservative Republican-appointed justices to vote against the administration. But the Republican-appointed Roberts and Justice Anthony Kennedy were wild cards. To the surprise of many, they both voted in favor of the administration.

Observers speculate that Roberts had a number of reasons for his decision. He tends to consider a broader range of factors in his rulings than just the text of a law, said Georgetown University law professor David Super. Roberts has been a reliably conservative vote on issues related to civil rights, the environment and access to the courts. But he tends to side with liberals on a number of other issues, Super said.

Super called Roberts a conservative justice in the tradition of former Chief Justice William Rehnquist, for whom Roberts clerked early in his career. “While I don't think anyone ever questioned whether Rehnquist was a conservative, his approach was fundamentally different than that of Justice (Antonin) Scalia or Justice (Clarence) Thomas,” Super said. “Rehnquist and Roberts have perhaps a more economic approach to things, an approach certainly very sensitive to the business community and business interests.”

Paul Rothstein, another Georgetown University law professor, noted that Roberts is a practicing Catholic, which he suggested may affect Roberts' views on helping the needy. Also, the chief justice may have been concerned about protecting the court's institutional reputation. “I think he didn't want to be the guy who deprives millions of people of healthcare,” Rothstein said. “And that fit nicely with another campaign I think he is on, which is to show the Supreme Court is not political and partisan and divided strictly along political lines.”

A prominent Obamacare critic offered a different perspective on Roberts' decisions to side with the administration in the two ACA cases. “There's a theme, which is that he changed the law in ways that the law's supporters in Congress didn't have the votes to change it,” said Michael Cannon, director of health policy studies for the libertarian Cato Institute, who helped spearhead the King v. Burwell challenge. “He rewrote the law in order to avoid having to strike the whole thing down.”

The dissenting justices in the case expressed a similar view of Roberts' majority opinion. Scalia wrote that the majority rewrote the law both in its 2012 and King v. Burwell decisions. He mockingly suggested the law be renamed SCOTUScare, after the acronym for the Supreme Court of the United States.

Blackman, who filed an amicus brief with the Cato Institute supporting the King petitioners, was also critical, noting that Roberts' opinion was in line with his testimony during his Senate confirmation hearings. “He views preserving the Supreme Court's reputation at such a high value that I think he places that above the rule of law itself,” Blackman said. “I think in both cases he saw the challengers had a good argument, but he didn't want to throw the court into that sort of political thicket.”

At the same time, however, ACA supporters are not entirely happy with Roberts' votes on the law. His decision in the 2012 NFIB case to join six other justices to allow states to opt out of the ACA's Medicaid expansion without losing all Medicaid funding also has had a major impact. Three years later, 20 states still have not expanded Medicaid.

“That has had the effect of effectively depriving millions of people of health coverage,” said Tim Jost, a law professor at Washington and Lee University who supports the ACA.

The states' decisions not to expand Medicaid have put financial pressure on healthcare providers, especially safety net providers, said Nicholas Bagley, an assistant law professor at the University of Michigan and an ACA supporter.

Roberts' ACA opinions aren't the only ones that could have a lasting impact on the U.S. healthcare system. He was in the majority in several other recent healthcare cases that will significantly affect the industry. Earlier this year, the high court ruled 5-4 in Armstrong v. Exceptional Child Center Inc. that private healthcare providers cannot sue state Medicaid agencies to force them to raise payment rates. Jost called the Armstrong case the second most important healthcare case of the most recent court term because it greatly reduces the ability to challenge inadequate rates in the courts. That could affect beneficiaries' access to care, experts say.

Roberts also was part of the conservative majority in the Burwell v. Hobby Lobby Stores case, in which the court ruled 5-4 that closely held companies whose owners have religious objections to the ACA's contraceptive coverage requirement cannot be forced to offer such coverage to their employees.

It's possible at least one more contraceptive coverage case soon could go before the Supreme Court. Petitioners in half a dozen cases involving religious not-for-profit organizations have asked the court to hear their challenges to an Obama administration workaround to the contraceptive coverage mandate. The workaround requires not-for-profits that want to opt out of the mandate to notify the government so it can facilitate other coverage for their employees. But the plaintiff organizations argue that being required to take any action, including notifying the government, violates their religious principles.

Roberts and his court also will decide another significant healthcare case in the next term, which begins in October. In Gobeille v. Liberty Mutual Insurance Co., the justices will consider whether a third-party administrator for an insurance company's self-funded health plan for its employees must turn over certain data to Vermont for the state's all-payer healthcare claims database. That database is designed to help improve quality and reduce costs. The insurer argues the federal Employee Retirement Income Security Act of 1974 exempts it and its third-party administrator from having to submit the information.

“That's going to be a case that really tests the limits of what a state can do to regulate its healthcare insurance markets,” Bagley said.

Still, legal experts say Roberts and his court are unlikely to soon see another healthcare case as momentous as the ACA cases. In his King v. Burwell opinion, Roberts himself seemed to foreclose the possibility of the court accepting another case challenging the constitutionality or legality of the healthcare reform law as a whole. “In every case we must respect the role of the Legislature, and take care not to undo what it has done,” he wrote.

Then again, Roberts has been on the court for just 10 years, and he's only 60. “He could serve on the court for another 30 years,” Chemerinsky said.

That means King v. Burwell might not be the last game-changing healthcare ruling Roberts makes.