Justice Kennedy Votes To Uphold Obamacare Subsidies
Justice Kennedy and Berkeley Law Dean Sujit Choudhry in September

Justice Kennedy and Berkeley Law Dean Sujit Choudhry in September

I didn’t quite believe that the Supreme Court would uphold Obamacare subsidies to people with health insurance through federal exchanges, as the court voted today.  Part of my doubts came from comments Justice Kennedy made in a visit to Berkeley Law last September.  From my write-up at the time:

But Kennedy turned more serious when discussing the state of politics and culture in the country.  In short, he is quite concerned, even alarmed, at what he perceives to be the lack of civility in the country and even worse at the lack of appreciation among younger generations of our “heritage of freedom.”  He said our democracy is still vulnerable, people around the world are watching us, and it’s incumbent that we teach the younger generation to appreciate what we have.  He cited the example of a former communist country where democracy is breaking down and alarmingly, no one seems to care.  He also described how at least in communist Poland great thinkers went into teaching and instilled democratic values in students for decades, whereas our educational system is now lagging.

I worried that Kennedy’s rhetoric on “heritage of freedom” might indicate an extreme ideological aversion to Obamacare.  After all, he had already gone on record (in a losing vote) that the law exceeded federal constitutional authority under the commerce clause. Would he use some bad drafting despite clear intent to strike down the subsidies now?

Mercifully, the court — with Justice Kennedy — ruled correctly, following basic steps of statutory interpretation when there are conflicting terms or phrases in the law.  But Kennedy sure had me doubting for the last nine months.


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