Chief Justice John Roberts, who saved Obamacare in 2012, stays quiet this time

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Liz Goodwin
·Senior National Affairs Reporter
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This Jan. 28, 2014, file photo shows Supreme Court Chief Justice John Roberts in the House chamber on Capitol Hill waiting for the president's State of the Union address to begin. (AP Photo/Larry Downing, Pool)
This Jan. 28, 2014, file photo shows Supreme Court Chief Justice John Roberts in the House chamber on Capitol Hill waiting for the president's State of the Union address to begin. (AP Photo/Larry Downing, Pool)

Chief Justice John Roberts, who saved President Barack Obama’s health care overhaul three years ago by unexpectedly joining the liberal wing of the court, stayed largely silent in oral arguments on a new challenge that could deal a mortal blow to the law.

The argument centers on whether four words in the more than 1,000-page act should be interpreted literally, which would render millions of people who live in the dozens of states that did not set up their own insurance exchanges ineligible for federal subsidies to help them purchase insurance.

Wednesday’s oral arguments were filled with dry technical analysis of specific passages in various indices of the law — but they also contained some fireworks. The liberal justices battered the lawyer challenging the subsidies, Michael Carvin, while conservative justices Samuel Alito and Antonin Scalia took on Solicitor General Donald Verrilli.

Michael Carvin, one of the attorneys against the U.S. government in the King v. Burwell case, speaks to reporters after arguments at the Supreme Court building in Washington, March 4, 2015. Also pictured is Attorney General of Oklahoma Scott Pruitt (R). The U.S. Supreme Court appeared divided on ideological lines on Wednesday as it heard a second major challenge to President Barack Obama's health care law targeting tax subsidies intended to help people afford insurance, with Justice Anthony Kennedy appearing to be the possible swing vote in a decision. (REUTERS/Jonathan Ernst)
Michael Carvin, one of the attorneys against the U.S. government in the King v. Burwell case, speaks to reporters after arguments at the Supreme Court building in Washington, March 4, 2015. Also pictured is Attorney General of Oklahoma Scott Pruitt (R). The U.S. Supreme Court appeared divided on ideological lines on Wednesday as it heard a second major challenge to President Barack Obama's health care law targeting tax subsidies intended to help people afford insurance, with Justice Anthony Kennedy appearing to be the possible swing vote in a decision. (REUTERS/Jonathan Ernst)

The chief justice, however, stayed away from the fray. He spoke only a few times. Once, Roberts told Carvin that he was giving him 10 additional minutes to speak. At another time, he jokingly defended Carvin from the liberal justices’ attacks.

Sonia Sotomayor, Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg took turns carving up Carvin for the statements he made in 2012 when he argued in front of them that they should strike down the law’s individual mandate. Back then, Carvin said subsidies were crucial to the law’s existence and were altogether illegal (an argument he lost after Roberts upheld the individual mandate as a tax). Now he says that lawmakers only intended subsidies to go to people living in states that set up their own exchanges and that an exchange without federal subsidies still provides “valuable benefits” to a state.

“That’s not what you said previously when you were here last time in this never-ending saga,” Kagan said to laughs.

Roberts stepped in. “Mr. Carvin, we’ve heard talk about this other case. Did you win that other case?” he asked to laughter. Carvin said he did not, and the issue did not come up again.

In the oral arguments challenging the health care law in 2012, Roberts asked many questions of both the government and the petitioners, and he was one of the most vocal justices. It’s unclear why he was quieter this time around. His surprising decision to uphold the law then sparked a blistering conservative blowback against the chief justice.

Roberts didn’t tip his hand at all on Wednesday, but Anthony Kennedy, a conservative justice who occasionally sides with the liberal wing on controversial cases, was more voluble. Early in the argument, he told Carvin he feared that if the court agreed to strike down the subsidies, states would then be unconstitutionally “coerced” into establishing their own exchanges, to avoid having millions of their residents kicked off their coverage. This appeared to violate his federalist principles.

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing from left to right in back row are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. (REUTERS/Larry Downing)
The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing from left to right in back row are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. (REUTERS/Larry Downing)

“There’s a serious constitutional problem if we adopt your argument,” Kennedy said. When Carvin tried to dodge his complaint, saying the government had not raised the same objection, Kennedy deadpanned: “Sometimes we think of things the government doesn’t.”

But at other times, Kennedy seemed very skeptical of the government’s position that “established by the state” means, in the context of the law, established by the state or by the federal government. He was even more wary of the argument that the Supreme Court should defer to the IRS in its interpretation of the statute. “It seems to me a drastic step to say the Department of Internal Revenue and its director can make this call when there’s, what, billions of dollars of subsidies involved here,” Kennedy said.

Roberts piped up, asking Verrilli if he believed the IRS had the power to decide not to give subsidies under a subsequent administration that was hostile to the health care law. The solicitor general said it was possible but that the agency would face an uphill battle justifying the move.

The swing-vote justice added that he found it “very odd” that the IRS didn’t flag years ago that it wasn’t clear who was eligible for federal subsidies.

A decision is expected in June.

Demonstrators stand outside the Supreme Court in Washington, on Wednesday, March 4, 2015, as the court hears arguments in King v. Burwell, a major test of President Barack Obama's health care overhaul which, if successful, could halt health care premium subsidies in all the states where the federal government runs the insurance marketplaces. (AP Photo/Pablo Martinez Monsivais)
Demonstrators stand outside the Supreme Court in Washington, on Wednesday, March 4, 2015, as the court hears arguments in King v. Burwell, a major test of President Barack Obama's health care overhaul which, if successful, could halt health care premium subsidies in all the states where the federal government runs the insurance marketplaces. (AP Photo/Pablo Martinez Monsivais)