June is always the most exciting month of the year for the Supreme Court. Typically, the court decides its most high-profile cases then, usually late in the month. And this June is no exception. It will bring important decisions regarding the Confederate flag on license plates, lethal injection drugs, regulating emissions of coal and power plants, housing discrimination and more.
But those decisions will be decided in the shadows of two of the highest-profile cases the court has had in years, or possibly decades: Obergefell v. Hodges, the same-sex marriage case, and King v. Burwell, the decision about whether to gut Obamacare and end affordable health care access for millions of people in the United States.
Here’s what to expect with both those cases.
The case: Obergefell v. Hodges
Background: Does the Constitution require marriage equality? The Supreme Court came close to answering this question back in 2013, but avoided it on technical grounds. This time, with Obergefell, it will address the issue head-on.
It may be hard to remember, but in May of 2004, there wasn’t a single state in the country that permitted same-sex marriage. Eleven years later, 37 states and the District of Columbia have marriage equality, and nearly 72 percent of Americans live in a state that allows same-sex couples to marry. That is remarkably sweeping change in a very short period of time.
Now, the Supreme Court has to decide whether the remaining states have to permit same-sex marriage. The case – originating from the four non-equality states of Ohio, Tennessee, Kentucky and Michigan – was argued in late April, and all eyes are now on Justice Anthony Kennedy. (Based on their questioning at oral argument, neither the more liberal nor the more conservative justices gave us any reason to doubt how they will rule, though some people are still holding out for Chief Justice Roberts to surprise us and vote for equality.)
This case will likely be decided the last day of the court’s term, currently scheduled to be June 29.
Prediction: A historic 5-4 decision for equality.
Evidence: Predicting how Kennedy will vote requires us to probe the beliefs he’s expressed in the past about gay rights. And you could say – stay with me here – that his beliefs are well expressed by Whitney Houston lyrics. You see, Kennedy has authored each of the high court’s three major gay rights decisions over the past two decades, and in those cases he’s returned to the same themes: “the children are our future,” and the law “can’t take away [gay people’s] dignity.”
During oral arguments in April, he did this once again, peppering the lawyers defending the same-sex marriage bans with questions about how children of gay and lesbian couples are harmed by denying their parents the right to marry, and how gay and lesbian individuals lose their dignity by not being able to marry. Once again, he seemed this close to breaking into “The Greatest Love of All.”
Although we can’t know for sure what the Supreme Court will do, when Justice Kennedy channels his inner Whitney like this, it’s good news for supporters of marriage equality.
The case: King v. Burwell
Background: Is the Obama administration implementing its signature legislative achievement, the Affordable Care Act, in a way that flouts the language of the law? That is what the court has to decide, and it’s a question that could affect health insurance coverage for millions of Americans.
Obamacare has been a wildly successful social welfare program. According to recently released data, more than ten million people signed up for subsidized health insurance through Obamacare this year, and almost nine out of ten adults now have health insurance, a huge improvement from the pre-Obamacare rate.
This could all come to an end if the Supreme Court decides the program is not being implemented properly. At issue is whether people who bought insurance in states that did not set up their own health insurance exchange can get subsidies from the federal government to help them pay for that insurance. The law very clearly allows subsidies for people who buy insurance through state-run exchanges, but does it allow them to do so if the state relies on a federal exchange because it refused to set up its own?
If the court rules against the Obama administration, most experts predict that more than six million people would lose subsidies, making most of them unable to afford insurance and possibly destroying the health insurance market in the affected states.
As with the same-sex marriage case, expect a decision the last day of the term.
Prediction: I wouldn’t bet my life savings on it, but we’re looking at a possible 5-4 win for Obamacare.
Evidence: If the court ruled against Obamacare, most experts believe the health insurance market would suffer what’s called a “death spiral” without the subsidies. Healthy people in states without subsidies would drop their coverage because it would start costing too much. Then insurance would become more expensive, because premiums would go up with healthier people dropping out of the pool. Then more people would drop their coverage as it got even more expensive. Then premiums would go up once again. And rinse and repeat, ad nauseum. This downward spiral could destroy Obamacare’s advances with respect to private health insurance.
But the threat of this descent into chaos could also be what saves Obamacare. The Supreme Court justices are well aware that if they rule the subsidies are not allowed, the law would basically implode and millions of real people would be harmed. The hope is that at least one of the five conservative justices bows to this reality. To do so, they’d have to move beyond the hostility they espoused toward the law in 2011 when the court barely upheld Obamacare in the face of a constitutional challenge.
The millions of people who now have health insurance thanks to Obamacare are banking on it.