My Official King v. Burwell Prediction

A whole mess of people keep asking me (as they do other ACA bloggers/reporters/pundits) how I think the Supreme Court will rule on the King v. Burwell case.

I've gained a lot of acclaim & attention over the past year and a half for making pretty accurate projections for ACA exchange enrollment numbers.

However, when it comes to predicting how the Supreme Court will rule on stuff, I haven't a clue.

Having said that, it seems to be pretty well accepted that the 4 more left-leaning Justices (Ginsburg, Sotomayor, Breyer & Kagan) will almost certainly rule for the federal government, while the 3 hard-right Justices (Scalia, Thomas and Alito) will almost certainly rule for the plaintiffs. That would leave Anthony Kennedy and Chief Justice John Roberts as the "swing votes".

Conventional wisdom on Roberts is that normally he'd be expected to side with the plaintiffs since he's a pretty solid conservative...but that in this case, he's more likely to side with the government because a) he's also a solid corporatist (the insurance and hospital corporations would be hurt by a plaintiff win) and b) he's the one who "saved" the ACA 3 years ago (well, mostly, anyway), when the plaintiffs had arguably a stronger case, so why would he vote to "kill" it today on a much shakier case? (No, a plaintiff win actually wouldn't kill the whole law, but it'd make one hell of a mess out of it). Plus, 3 years ago, him voting with the challengers would have been a much "cleaner" kill, as that case was decided before the ACA exchanges or Medicaid expansion actually went into effect. Doing so today would be, as I said, much uglier, with millions of people severely impacted. However, "conventional wisdom" doesn't guarantee anything.

Kennedy, meanwhile, is (as I understand it) something of a wild card. He actually voted against the ACA 3 years ago, and made some comments during the oral arguments a few months ago which suggested that he would do so again...but also made some other arguments which might suggest that he might rule for the government this time around. So again, who the hell knows?

Since the plaintiffs would have to win over both Roberts and Kennedy, that means they only have a 25% chance of winning via simple odds:

  • 1. Both rule for government
  • 2. Roberts for government, Kennedy for plaintiffs
  • 3. Roberts for plaintiffs, Kennedy for government
  • 4. Both rule for plaintiffs

On the one hand, that sounds promising.

On the other hand, as I've been putting it since January, Russian Roulette only has a 17% chance of blowing your head off, so that doesn't help much.

With that said, my personal, just-for-the-hell-of-it, don't-hold-me-to-it, pulled-out-of-my-ass guess is that it'll end up being:

  • 1. Decided on Friday
  • 2. The federal government will win the case
  • 3. A 5-4 decision with Roberts as the deciding vote

However, my official projection is...