A Cheery Thought re. King v. Burwell

UPDATED w/explanation (although this really isn't a serious analysis, just trying to make a larger point:

The conventional thinking now seems to be that Roberts and Kennedy are likely to side with the 4 liberal/Dem-appointed Justices to rule against the plaintiffs, 6 to 3.

This translates to roughly, say, a 75% chance of the federal exchange subsidies continuing, 25% chance of them being cut off:

  • Ginsberg: Keep Subsidies
  • Kagen: Keep Subsidies
  • Breyer: Keep Subsidies
  • Sotomayor: Keep Subsidies

= 4 to Keep Subsidies

  • Kennedy: ???
  • Roberts: ???
  • Scalia: Kill Subsidies
  • Thomas: Kill Subsidies
  • Alito: Kill Subsidies

= 3 to Kill Subsidies

Assuming the other 7 vote as expected, with only 2 wildcards, the possibilities are:

  • 1. Kennedy keeps, Roberts kills = 5:4, Subsidies Saved
  • 2. Kennedy kills, Roberts keeps = 5:4, Subsidies Saved
  • 3. Kennedy keeps, Roberts keeps = 6:3, Subsidies Saved
  • 3. Kennedy kills, Roberts kills = 4:5, Subsidies Killed (BOO!)

= 75% chance of telling the plaintiffs to go pound sand, I suppose.

On the one hand, a 25% chance of defeat is certainly better than 50/50.

On the other hand, when playing Russian Roulette, you only have a 17% chance of blowing your head off.

That is all.