Justice Anthony Kennedy was furious when a majority on the U.S. Supreme Court upheld President Barack Obama’s healthcare law. As he read the dissenting opinion from the bench three years ago, his anger was palpable. The majority regards its opinion “as judicial modesty,” he declared. “It is not. It amounts instead to a vast judicial over-reaching.”
That was Kennedy on June 28, 2012.
Now, as the country awaits a ruling in the second major challenge to Obama’s signature Affordable Care Act, a question is whether the justice who was the voice of the opposition then could provide the critical fifth vote to uphold the law on the nine-justice court now.
At stake are the tax-credit subsidies that have helped low- and moderate-income Americans obtain health insurance. The challengers say the government unlawfully extended those subsidies to states that did not create local insurance exchanges but instead relied on the federal exchange. If the court strikes down the subsidies, millions of Americans in at least 34 of the 50 states could lose coverage.