The bitter ideological divisions of the US supreme court overshadowed a crucial challenge to Barack Obama’s healthcare reforms on Tuesday, as liberal justices appeared to successfully rail against a case that could remove insurance from millions of Americans.  “Would you please back up,” demanded an irritated Justice Ruth Bader Ginsburg within seconds of an opening statement by plaintiff lawyer Michael Carvin. He tried to argue it was “a straightforward case” of flawed legislation, but was immediately challenged instead over the legal standing of his clients.  “Take a breath,” implored Sonia Sotomayor sarcastically, as Carvin then raced through his claim that loosely drafted language in the Obamacare legislation meant it was illegal for the federal government to subsidise insurance in states that refused to cooperate with the reform process.  “Wow. You have been talking a lot,” added an equally exasperated Elena Kagan. “Two more sentences,” she ordered part way through the hour and a quarter long oral argument in the case called King v Burwell.  Related: Obamacare supporters take to the streets as supreme court deliberates  Their impatience with what Sotomayor called a “never-ending saga” of legal challenges to Obamacare briefly appeared to be shared by Chief Justice John Roberts, who had cast the deciding vote in striking down a similar challenge in 2012.  “We have heard talk about that other case,” said an otherwise silent Roberts. “Maybe it makes sense if you had a different argument today.”  Justice Anthony Kennedy, the other swing voter on a nine-strong bench that usually leans toward conservative decisions, was also sceptical.  “There is a serious constitutional problem if we accept your argument,” he told Carvin, warning that if the legislation only allowed for tax subsidies in states that set up their own insurance exchanges, it would devastate those states where the federal government had stepped in instead.  At issue is what appears to be a drafting error in the original legislation to question a key plank of Obama’s health insurance reforms.  Plaintiffs led by Virginia limousine driver David King sued the health secretary, Sylvia Burwell, on the grounds that the error means they were compelled to pay for health insurance they did not want and would otherwise have been exempted from because it was too expensive.  This seemingly perverse argument rests on the way the law allows for tax credits to bring down the cost of health cover in states that run their own insurance exchanges.  But the original language in the legislation does not appear to include states such as Virginia which rely on the federally administered exchange instead, threatening millions who have already benefited from the tax credit in this way.  The administration argues this omission was just an oversight, and most legal experts believe the court ought to acknowledge the apparent intent of lawmakers to include federal exchanges too.  After the hearing, campaigners to protect Obamacare from this potentially devastating legal challenge were cautiously optimistic during a rally on the steps of the court.  “The chief justice did not ask lots of questions, Justice Kennedy did. I think there is an excellent chance that we will prevail,” said one megaphoned campaigner who had been in the court.  But Kennedy also appeared sympathetic to the counter argument; that the language of the legislation plainly states that subsidies should apply to “state exchanges”, not federally administered replacements for state exchanges.  The unusual silence from Roberts – beyond what could easily be dismissed as a jokey intervention – may simply reflect his desire to protect the reputation of the court from growing criticism that it has become as ideologically driven and divided as Congress.  Even liberal justices accept that the language drawn up by Congress in this law is ambiguous, but they argue it is absurd to read it the way Republican critics have.  “There is really nothing clear about this,” said Kagan. “This took a year and a half for anybody even to notice the language.”  She added: “Do you really believe that states believed their citizens were not going to get subsidies? Which senators said that?”  Yet the court’s most vocal conservative justices – Samuel Alito and Antonin Scalia – argue that badly drafted legislation, or “gobbledegook” as Scalia called it, is not the job of the court to fix, but Congress.  “[Are you saying] there are no statutes that don’t make sense?” demanded Scalia in one of several tetchy exchanges with the government’s solicitor general, Donald Verrilli. “[That] every statute must make sense and we twist the words to make it do so? That can’t be right.  “Congress adjusts. Why is that not going to happen here?” asked Scalia.  “This Congress?” responded Verrilli witheringly.  Ultimately, the caution of Kennedy and the desire of Roberts to avoid reversing his earlier support for the legislation, may yet save red faces on the Senate banking committee, which drafted the relevant passage.  But the prospect of retroactively removing subsidies that have made healthcare affordable for millions of Americans still rests on the inscrutable judgment of these two swing voters and the nation may have to wait until the summer to find out where they stand.  In Congress, Democrats later held a press conference to warn the supreme court not to overstep its authority in reviewing the case.  “We are confident that the supreme court is going to rule in favour of the government because if they were to rule the other way, they would effectively be calling dozens of senators and representatives liars,” Chris Murphy of Connecticut told reporters.  “It would be the most stunning act of judicial overreach in the modern history of the court; essentially making this court a second legislative body whereby they can substitute their political judgement for the judgement of those who were elected.”  But lawmakers were also unapologetic for the loosely-drafted language that sparked the case, claiming Obamacare’s critics were blowing it out of proportion.  “What the Republicans and plaintiffs did in this case was essentially take a metal detector along a beach, find a coin and say this beach is the US Treasury,” said Senator Al Franken. “And then they reversed engineered an argument.. This is ridiculous.”
Justice Anthony Kennedy, the swing vote in most close cases, says throwing out subsidies would induce ‘death spiral’ but adds challengers may still prevail