WASHINGTON (AP) — The U.S. Supreme Court argument over subsidies that help millions of people afford their health insurance suggests that the Obama administration has two chances to attract one critical vote.
The justices will gather in private today to cast their votes in the case. The outcome after Wednesday’s argument appears to be in the hands of two conservative justices — one who voted with the court’s four liberals to uphold the law in 2012 and the other who joins the liberals more often, but who would have killed the whole thing three years ago.
If Justice Anthony Kennedy had his way in 2012, there would be no health care case because there would be no Affordable Care Act. Kennedy, whose vote often is decisive in cases that divide the court’s liberals and conservatives, was one of four dissenters who would have struck down the entire law.
But on Wednesday, Justice Kennedy at least left open the possibility that he would not vote the same way again because of a legal concept known as constitutional avoidance. The idea is that judges should avoid interpreting a law in a way that raises constitutional problems if there’s any other reasonable way to view it.
The dispute focuses on four words in the massive health law, “established by the state,” which the challengers say is clear evidence that Congress intended subsidies to go only to people in states that created their own health insurance marketplaces, or exchanges.