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Noah Feldman

How the Supreme Court Could Save Obamacare Again

There's a way out for Chief Justice John Roberts if Justice Antonin Scalia gives him cover.
Here we go, one more time.

Here we go, one more time.

Photographer: Andrew Harrer/Bloomberg

Could the U.S. Supreme Court allow the Affordable Care Act to survive its latest legal challenge because the plaintiffs in the case before it haven’t been injured by the law? It’s possible. The more probable result is still that the court will reach a decision on the merits of the case and eliminate the insurance subsidies necessary to make the law work in many states.

But if Chief Justice John Roberts wants to avoid the criticism that the Roberts court is the most activist conservative court in history, he could plausibly use the standing argument to avoid a decision -- especially if he could get cover from the archconservative Justice Antonin Scalia, who more or less invented the constitutional doctrine of standing in a 1992 case argued successfully by -- you guessed it -- then-Deputy Solicitor General John Roberts.