After Justice Ginsburg’s Loss, What a New Court Could Mean for the ACA

U.S. President Barack Obama greets Supreme Court Justice Ruth Bader Ginsburg
President Barack Obama greets Supreme Court Justice Ruth Bader Ginsburg, who consistently voted to protect the law, before delivering his State of the Union address to Congress on January 24, 2012. Photo: Saul Loeb / Getty Images

It is hard to find the words to describe the loss of Supreme Court Justice Ruth Bader Ginsburg. By all accounts, she was an incredible advocate, visionary, leader, family member, and friend. Many powerful tributes to her legacy will continue to be written in the days, months, and years ahead. She has especially inspired an entire generation of female leaders and lawyers, including myself, to use our skills to fight for equality and justice for all. Her voice, perspective, and powerful words will be sorely missed on the Supreme Court.

The loss of Justice Ginsburg has led to a flood of questions about what comes next for the court and the country. Who will be nominated to fill her seat? Will a new justice be seated by the time the court is scheduled to hear California v. Texas on November 10? How does the new makeup of the court, without Justice Ginsburg, affect the potential outcome in Texas? And what is the role of Congress in addressing the lawsuit? This post grapples with the answers to some of these questions and what they mean for the fate of the Affordable Care Act.

Before diving in, it must be emphasized that the plaintiffs’ arguments and lower court rulings in Texas remain remarkably weak, regardless of the makeup of the court. The lower courts’ legal conclusions — from standing to severability — have been roundly criticized by conservative legal scholars, the Wall Street Journal editorial board, the National Review editorial boardhealth care stakeholders, and Republican members of Congress and state officials (PDF), among others. The court’s decision in Texas, regardless of whether its justices are liberal or conservative, should be easy.

And yet here we are.

Continue reading the full post at the Health Affairs Blog.