‘Obamacare’ is a first test of Justice Barrett’s brand of conservatism


The future of the Affordable Care Act dominated Justice Amy Coney Barrett’s confirmation hearing and will be one of the first big cases the newly seated justice hears.

The challenge from several Republican-led states to the constitutionality of the ACA, also known as “Obamacare,” has immense practical implications – roughly 20 million Americans could be at risk of losing health insurance – and will be a first signal of how the court’s new conservative majority may approach politicized cases.

Justice Barrett is expected to strengthen the court’s conservative majority. But which conservative justices she aligns with is an open question.

That wing isn’t “a coherent or uniformly predictable voting bloc,” says Roman Martinez, a partner at Latham & Watkins and a former clerk for Chief Justice John Roberts and, when he was on the D.C. Circuit Court of Appeals, Justice Brett Kavanaugh. “You’ll see some heated debates within that group of six justices,” he adds. 

The fate of the ACA, to be argued on Nov. 10, could hinge on a recent debate the conservatives had over “severability” – whether an entire law should be struck down if one provision is unconstitutional.

Austin, Texas

Amy Coney Barrett joined the U.S. Supreme Court this week – replacing the liberal icon Justice Ruth Bader Ginsburg, who died last month – and is expected to further strengthen the court’s conservative majority. 

Which conservative justices she aligns with, though, will be an open question in some cases. Even in terms of general judicial philosophies – like originalism, which interprets the Constitution as the framers originally intended, and textualism, which interprets statutes based on a strict reading of the text – the justices differ over how to apply them. On more specific legal doctrines and questions, there have been further differences of opinion.

One of the first cases Justice Barrett will hear argued – on Nov. 10 – is a challenge from several Republican-led states to the constitutionality of the Affordable Care Act (ACA), known as “Obamacare.”

The case, which dominated Justice Barrett’s confirmation hearing, is one of the most high-profile cases of the term. If the law is struck down, roughly 20 million Americans would be at risk of losing health insurance. And the case importantly will be a first signal for how the court’s new conservative majority may approach politicized cases.

The case poses potentially complex questions for the conservative wing of the court, from arcane doctrines on standing and severability to broader philosophies around the role of the Supreme Court itself. And it will offer an early example of how U.S. law will largely be shaped in the coming years: by debates, and disagreements, between those conservative justices.

That wing isn’t “a coherent or uniformly predictable voting bloc,” says Roman Martinez, a partner at Latham & Watkins and a former clerk for Chief Justice John Roberts and, when he was on the D.C. Circuit Court of Appeals, Justice Brett Kavanaugh.

“You’ll see some heated debates within that group of six…



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