In Anti-Obamacare Case, Ruth Bader Ginsburg Questions the Foundation of the Lawsuit

[babylonsister]

http://m.motherjones.com/politics/2015/03/king-burwell-obamacare-supreme-court-ruth-bader-ginsburg

In Anti-Obamacare Case, Ruth Bader Ginsburg Questions the Foundation of the Lawsuit

The Supreme Court justice zeroes in on whether the plaintiffs even have a basis to sue.

—Stephanie Mencimer on Wed. March 4, 2015 2:00 PM PDT


During the Supreme Court oral arguments Wednesday morning in King v. Burwell, the case that threatens to destroy Obamacare, Justice Ruth Bader Ginsberg wasted no time in grilling the attorney seeking to eviscerate the Affordable Care Act about a significant technical matter that could blow up his case. As soon as Michael Carvin, the Jones Day partner representing the four plaintiffs named in the anti-Obamacare suit, started his opening statement, Ginsburg interrupted him with a slew of questions about whether his plaintiffs had a recognizable injury that would allow the case to proceed. A plaintiff, she declared, "has to have a concrete stake in the question…you would have to prove the standing if this gets beyond the opening door."

With these queries, Ginsburg was picking up on a critical issue highlighted last month when Mother Jones broke the news that the four plaintiffs may have dubious claims of standing in this case. According to legal filings in the case, two of the plaintiffs were likely not adversely affected by Obamacare because they could claim an exemption from the law's requirement to purchase health insurance due to their low income levels and high health care costs. The other two plaintiffs, Doug Hurst and Brenda Levy, would have benefited substantially from the Affordable Care Act had they obtained insurance through an Obamacare health exchange. (Levy said she was paying $1,500 a month for non-Obamacare insurance, which she could have bought on the federal health care exchange for $148 a month. Hurst, according to bankruptcy filings, had been paying more than $600 a month for his insurance in 2010. The ACA would have provided him insurance for $62 a month.)

Much of this information was not part of the court record; the plaintiffs' standing had not been fully scrutinized by the Obama administration lawyers in the lower courts. Consequently, these issues weren't among the questions posed to the Supreme Court before it agreed to take this case.

That didn't stop the 81-year-old justice. She quizzed Carvin about the backgrounds of two of the plaintiffs. She wanted to know, for instance, whether Levy was truly qualified to bring the lawsuit. Levy turns 65 in June, at which point she will be eligible for Medicare, not Obamacare, making her largely exempt from any repercussions from her case. Ginsburg asked Carvin how Levy could possibly be harmed by the Affordable Care Act given that she wouldn't be forced to use it for long.

Carvin contended that for two months of 2015, Levy would be subject to a tax penalty for going uninsured, and that was enough for her to bring the case. His answer highlighted the weakness of the individual plaintiffs' claims of injury. After more grilling from Ginsburg about the background of another plaintiff, Carvin said that the lower courts had not raised any issue regarding the plaintiffs' standing. Ginsburg, though, didn't care. She replied, "The court has an obligation to look into it on its own."

[onenote]

1. Probably a waste of time

I love Ruth (I was one of her students when I was in law school a million years ago). But her questioning on the standing issue was essentially a waste of time. Even the government's attorney essentially conceded that standing wasn't being challenged. And Sotomayor seemed to agree with him.

[progressoid]

2. Yup. n/t

[deurbano]

3. Very interesting connection with Ms. Ginsburg! Also, why isn't standing being challenged?

[BlueMTexpat]

6. Exactly ...???

[Jim Lane]

13. If someone's injured for only two months, that's probably enough for standing.

The status of these plaintiffs is a very good point for us to raise, politically -- it makes the point that the right-wingers had great difficulty finding anyone who suffered significant actual harm.

Legally, however, it seems weak to me. I haven't researched this, but my gut reaction is that the courts wouldn't negate a litigant's standing just because it will go away in several months. Someone sentenced to 30 days in jail for taking the name of the Lord in vain would surely have standing to challenge the law on First Amendment grounds, even though the injury is short-term. I have a vague recollection that the SCOTUS once heard an appeal from a parking ticket because, although the amount of the fine was trivial, there was some sort of legitimate procedural issue.

[babylonsister]

4. Perhaps all she wanted to do was bring attention to the standing issue. That worked. nt

[onenote]

5. True. But to what end? nt

[CanadaexPat]

7. To give the conservatives an out. nt

[Hekate]

8. You allege that The Notorious RBG is trying to give conservatives an out? Really?

Try again.

[hifiguy]

10. Without standing, the case can't proceed.

And yes, the SCOTUS does occasionally boot a case on grounds that technical.

[onenote]

11. Rarely when the issue hasn't been presented to them by either party

[hifiguy]

9. What was she like as a prof?

With a scalpel-sharp mind like hers, I'd bet she was excellent.

I had a couple of famous profs while in law school. One was a very good teacher (Susan Estrich) and the other was an incredible teacher (Larry Tribe). Had a couple of clunkers, too, but they weren't famous.

[onenote]

12. Tough. Really tough.

I think i got one of my worst grades from her!