On March 4 the Supreme Court was once again the venue for the third (but probably not the last) round in the ongoing boxing match that is the Affordable Care Act (“ACA”).

The rubber match is King v. Burwell.  For those few of you who are not familiar with King, see the box to the right.

For 85 minutes the attorneys—Michael Carvin for the petitioners and Solicitor General Donald Verrilli for the government—dodged and weaved as questions were thrown at them by the justices:  as is de rigueur for bouts in this forum, the lawyers spent more time answering hard questions thrown at them by eight members of the Court than actually arguing their respective cases.

Clients, colleagues, reporters and even our kids ask for a prediction.  But I refuse.  Experience proves that you simply cannot read too much into the questions posed at oral argument.

With that in mind, here are some observations based on my review of the oral argument transcript:

• The Questioners. Bolo punches were thrown by the four liberals (Ginsburg, Breyer, Kagan and Sotomayor) and two conservatives (Scalia and Alito), with each asking questions that revealed their political leanings.       Chief Justice Roberts asked few questions and those he asked seemed simply to facilitate discussion.       Not surprisingly, Justice Kennedy (affectionately known as “Flipper”) asked questions from both sides of the issue, but one series of questions (discussed below) has left the prognosticators atwitter with predictions of a major victory by the administration.
• Standing. In the run up to the March 4 oral arguments, there were claims that the petitioners did not have the proper standing to bring the lawsuit. The government had never challenged standing before, but standing—a person’s right to sue—can be raised at any time, even at the Supreme Court.       Standing addresses whether the petitioners will suffer an injury from the claimed harm. Since the Supreme Court does not provide “advisory opinions” there always has to be real controversy between litigants for the Court to actually hear and decide a case. Justice Ginsburg led the charge on this one, but her roundhouses hit nothing but air. I never thought this was a serious concern. And based on the questioning by the rest of the Court, none of them did either. Oddly, Justice Ginsberg was relatively quiet after her parry into this standing issue.
• Context. The government’s main argument is that while the four word ACA provision at the heart of the controversy only mentions “state” run exchanges, in the context of the rest of the statute, this really means something along the lines of “exchanges at the state level run by either the state or federal government.” The questioning revealed either skepticism (Justice Scalia reminding Verrilli that Congress is quite capable of writing dumb laws but that doesn’t mean the Supreme Court should fix them) or agreement (Justice Kagan using an analogy (see box to the right) to demonstrate that the context always matters (frankly, an odd departure for her from a fairly recent case where she channeled her inner Dr. Seuss to argue basically that a fish is a tangible thing). In the end, jabs were thrown by both sides but apparently no knockout punch was delivered. Nothing surprising here.
• Federalism.       With the reminder that no one can predict outcomes based on questions asked, Justice Kennedy, who is traditionally viewed as the potential swing vote on these issues, worked a line of attack with Justice Sotomayor that have many speculating (some hopefully) has put the petitioners on the ropes. Justice Kennedy moved away from the context issue and arguments about statutory construction and interpretation to focus on whether the petitioners’ position raises “serious constitutional problems of coercion.” If the petitioners’ reading of the statute is correct – that subsidies only apply to state-run exchanges – then, Justice Kennedy pointed out, the “states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.” The betting seems to be that this could potentially prove too much for the petitioners—a majority of the court could find that if the petitioners’ reading results in a reading of the statute that raises significant Constitutional issues, they might opt to choose the reading that avoids the constitutional dilemma. Of course, it is equally true that a different majority of the Court could find this coercion intended and unconstitutional, just as they did in 2012 with Medicaid Expansion. Some may disagree, but I score this about even.

So, to summarize, the advocates went a solid twelve rounds and pound-for-pound they came out about even.  Both Carvin and Verrilli are seasoned fighters at this level and no one expected either to deliver a TKO on the issue.  However, the questions asked (and answers given) will provide us all with much to talk about until June.  One item to note:  Justice Alito may have presented a way for the Court to rule against the Administration but not disrupt the markets when he indicated that any ruling could be stayed pending an agreement between President Obama and the Congress.  In other words, if the case comes out the wrong way for the government they may be saved by the bell, if only they can find a way to put down the gloves and start talking to each other.

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