Expect more of this.

Photographer: Jewel Samad/AFP/Getty Images

Obamacare May Die So Gay Marriage Survives

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Today's word is linkage. For example, Iran is confirming that, in October, President Barack Obama sent supreme leader Ayatollah Ali Khamenei a letter linking ongoing nuclear talks to the two countries’ joint interests in fighting the Islamic State. At the Supreme Court, linkage is going to be just as important. The U.S. Court of Appeals for the Sixth Circuit last week essentially forced the Supreme Court to decide whether there's a constitutional right to same-sex marriage, by refusing to recognize such a right itself. The next day, the court agreed to hear a potentially fatal legal challenge to the Affordable Care Act.

Taken together, these two cases transform the current Supreme Court term into a blockbuster -- and the linkage relationship between them will be all-important.

How does linkage work at the Supreme Court? To begin with, recognize that today's justices never speak in terms of horsetrading or logrolling from one case to another. I don't just mean that, when asked publicly if justices might trade votes to support causes held dear by one-another, they all deny it. I mean that, even within the court itself or in private conversation with clerks and confidants, the justices would almost certainly say that no such linkage exists. Denial of linkage across unrelated cases is a kind of justices’ dogma -- it would be sacrilegious, not to say heretical, for court insiders to say otherwise.

Nevertheless, linkage may exist at the level of psychology -- and the justices know it. Former Justice John Paul Stevens was the master of subtle linkage. In 2008, in an important death penalty and international-law case called Medellin v. Texas, Stevens somewhat inexplicably joined the five conservative justices. Stevens wrote a separate concurrence, agreeing with the majority that the Supreme Court must not apply a decision of the International Court of Justice that purported to block the execution of a Mexican national who hadn’t been informed of his right to speak to a Mexican consular official after arrest. Stevens wrote critically that “this case presents a closer question than the Court's opinion allows” -- yet this opponent of the death penalty, respecter of international law, and then-leader of the court’s liberal faction, nevertheless abandoned the other liberals in the case.

What was going on? The overwhelmingly most likely explanation for Stevens’ opinion in the Medellin case was that it was being decided at precisely the same moment as the landmark case of Boumediene v. Bush, in which the Supreme Court extended constitutional rights to the Guantánamo Bay camp detainees. This case was of the utmost importance to Stevens, who ever since he was a law clerk to Justice Wiley Rutledge in 1948 had been committed to the idea that the government should not be able to avoid habeas corpus by holding prisoners outside the jurisdiction of any U.S. court. Stevens did not want Justice Anthony Kennedy to be subject to the criticism that he had provided the deciding conservative vote in the Medellin decision and the deciding liberal vote in the Guantánamo case. By throwing his lot with the conservatives in the Medellin decision, Stevens didn't change the outcome in that case -- but he did give Kennedy some cover to become a liberal constitutional activist in Boumediene.

Justice Kennedy, usually the court's swing vote, will be the subject of linkage speculation this term as well. Kennedy is known to be an activist liberal when it comes to gay rights, and the question whether the Supreme Court will affirm the fundamental right to marry is really just a question of whether Kennedy himself is ready to do what he was not ready to do in 2013 when he struck down the Defense of Marriage Act. Yet it's also well recognized fact about Kennedy that he considers himself a conservative justice. It’s therefore possible to speculate that, if Kennedy issues an important liberal decision -- in the case of same-sex marriage, possibly the most important one of his career -- he will also try to maintain his conservative bona fides with a corresponding conservative decision.

If you believe that Kennedy will decide in favor of gay marriage -- and I do -- then it seems almost guaranteed that he will vote with the conservatives against the Barack Obama administration in the new Affordable Care Act case. Indeed, Kennedy already voted to strike down the individual mandate as unconstitutional in 2012. Then, too, some speculated that the vote might be linked to the Defense of Marriage Act cases that were wending their way to the court.

That leaves Chief Justice John Roberts in the driver’s seat in the upcoming Obamacare case, as he was in 2012. For Roberts, linkage has a very different meaning than for Kennedy. Roberts seems strongly committed to the idea that a court associated with his name should not come to be seen as the most activist conservative court since the 1920s and 30s. His surprising vote to save the individual mandate two years ago was an act of judicial restraint that simultaneously saved the Roberts court from opprobrium.

But if the Roberts Court (without Roberts’s vote) announces a fundamental constitutional right to marry, its liberal legacy will be so prominent that Roberts may have reason that he can kill Obamacare without tarnishing the court’s reputation too much.

Imagine that, in the space of a few days at the end of June, the court decides a landmark case in favor of gay rights and then says that the IRS can't give subsidies to citizens of states that haven't created their own health-insurance exchanges: What liberal critic would be able to say with a straight face that this was the most conservative activist court in history? The court would be activist, all right, but it would appear almost evenhandedly so.

Watch out for linkage, then. It may well mean the end of Obamacare as we know it.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Tobin Harshaw at tharshaw@bloomberg.net