Supreme Court Institute Offers Mid-Term Preview

January 30, 2015 —

At the Supreme Court Institute’s annual press briefing last September, experts could not predict with certainty whether the latest cases involving the Affordable Care Act and marriage equality would end up on the docket this term.  But now that the Court has granted review to decide both, the panelists at the Institute’s mid-term preview on January 28 quickly moved to what might happen next.

King v. Burwell looks at whether the IRS may provide tax credits to people who buy health insurance on exchanges established by the federal government. Under the ACA, if states fail to establish their own exchanges the federal government must do so for them. But the ACA's text explicitly allows tax credits for individuals who buy insurance on an exchange established by the state. 

“The question is whether the tax credits are available only to individuals who purchase insurance [through] state exchanges or … federal exchanges as well,” said Williams & Connolly’s Kannon Shanmugam. “This is obviously of critical importance to people in those states where the state governments … have chosen not to establish exchanges of their own.”

Meanwhile, DeBoer v. Snyder — the latest chapter in the marriage equality debate — asks whether the 14th Amendment requires states to issue marriage licenses to same-sex couples or to recognize such marriages lawfully performed elsewhere. The 6th Circuit recently upheld bans on same-sex marriage in four states, diverging from other circuits that have decided the issue.

“It’s no surprise that … the key vote here would seem to be Justice Kennedy,” said Latham & Watkins partner Melissa Arbus Sherry. “You have federalism on one hand and gay rights on the other.”

Supreme Court Institute Executive Director Irv Gornstein and the day’s moderator, SCOTUSblog editor Amy Howe (G’94, L’98), introduced the panel, which also included Goldstein & Russell’s Tejinder Singh and Sullivan & Cromwell’s Jeff Wall.

And while this latest group of experts declined to make outright predictions, they wondered (in response to a student question) about the effect that the two blockbuster cases might have on each other. “Who knows what’s going to happen, but if [you think] that either Justice Kennedy or the Chief Justice or both are prepared to recognize a right to marriage equality … that would take an awful lot of sting out of knocking out the president’s chief domestic policy achievement,” Wall said, referring to the ACA. “I don’t know whether that factors into their decision-making or not.”

The experts also explored Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (Fair Housing Act), which was argued on January 21; Arizona State Legislature v. Arizona Independent Redistricting Commission (Elections Clause); Walker v. Texas Division, Sons of Confederate Veterans (Speech Clause); and Glossip v. Gross (Eighth Amendment/lethal injection). A webcast may be viewed here.


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