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Posts tagged ‘Justice Anthony Kennedy’

4 Supremes alert America: ‘Trouble is coming’


Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

America needs to prepare for a major governmental assault on religious liberty in the wake of the Supreme Court’s marriage ruling, but those standing against the tide can find plenty of inspiration from those who pioneered the concept of religious freedom at the American founding.

Michael Farris is co-founder of the Home School Legal Defense Association and author of “The History of Religious Liberty.” The book details the fierce fight for the religious freedom provisions that eventually emerged in the First Amendment to the Constitution.

Farris said history is critical to understand in the wake of the marriage decision and the brand new threats to liberty being advocated on the political left.

The day after the Obergefell v. Hodges decision was handed down, Sen. Tammy Baldwin, D-Wisc., told MSNBC she believed religious liberty was a much narrower concept than has been understood for centuries. “Certainly the First Amendment says that in institutions of faith that there is absolute power to, you know, to observe deeply held religious beliefs,” Baldwin said. “But I don’t think it extends far beyond that. We’ve seen the set of arguments play out in issues such as access to contraception.”More Evidence

She added, “Should it be the individual pharmacist whose religious beliefs guides whether a prescription is filled? In this context, they’re talking about expanding this far beyond our churches and synagogues to businesses and individuals across this country. I think there are clear limits that have been set in other contexts, and we ought to abide by those in this new context across America.”What did you say 05.jpg

Michael Farris’ “History of Religious Liberty” is a sweeping literary work that passionately traces the epic history of religious liberty across three centuries, from the turbulent days of medieval Europe to colonial America and the birth pangs of a new nation. 

Farris is dumbfounded at Baldwin’s reading of the First Amendment. “The ignorance of members of Congress and the U.S. Senate never ceases to baffle me. How did they get there in the first place without taking a basic civics course? Or maybe they have and they just don’t believe it,” Farris said. “This senator has just simply walked away from not only the text of the Constitution and the meaning of the Constitution but our great American traditions.”

In fact, Farris believes Baldwin’s concept of religious liberty is almost completely backward. “It is an institutional right,” he said. “Churches have religious freedom, but it’s primarily an individual right. The Supreme Court – back in the day when it used to think straight – would say things like it’s not up to the government or the courts to determine which individual within a faith has correctly understood the demands of that faith. You’re allowed to go your own way.”SCOTUS GIANT

In response to the court decision, Govs. Greg Abbott, R-Texas, and Sam Brownback, R-Kansas, have announced their states will vigorously protect the religious liberty of the people. Farris applauds the efforts but warns those policies won’t stop all government intrusion into Americans’ lives or the practices of religious institutions. “That’s a good thing. It limits the areas where a church or a school can expect an attack. But a Christian college residing in one of those states can still expect an attack from the IRS or from the accrediting association or from the U.S. Department of Education if they don’t go along with the federal edicts on this,” said Farris, who warned schools and churches would be wise to protect themselves legally now given the dire warnings offered in the dissents to the Obergefell decision. “We have four justices on the Supreme Court effectively warning all the religious institutions, ‘You better do something about this because trouble’s coming.’ I don’t think that’s an idle speculation,” he said. “That’s about as strong of a warning from about as high a source as you can possibly get.”

<div>Please enable Javascript to watch this video</div>Farris expects the Religious Freedom Restoration Act to provide federal protection for Christian individuals and organizations, but only to the extent that Justice Anthony Kennedy acknowledges it.

In “The History of Religious Freedom,” Farris details the long, unlikely triumph of religious freedom in America’s founding. Just as in Europe, colonial America witnesses various denominations cracking down on others.

Modern history textbooks credit enlightenment thinking for the emergence of religious liberty in America. To Farris, that’s academic fantasy, cp 11and true scholars have actually debunked that notion. “It’s simply not true,” he said. “I lay out the historical evidence in great detail. One Harvard historian around the 1920s said the evidence that people who are indifferent to religion, that basically is the enlightenment crowd, were the cause of religious liberty is an unsustainable argument. There is simply no evidence for that point.” He added, “It was people who cared very deeply. It was grassroots kinds of Christians fighting establishment kind of Christians who gave us religious liberty for everybody. The battle for religious liberty wasn’t settled on the Mayflower.”

Protections for the free exercise of religion were anything but guaranteed in America. Farris said the colonial government of Virginia teamed with the Anglican Church to punish dissenters as late as the 1770s. In 1776, Virginia’s Declaration of Rights became the first declaration of religious liberty anywhere in the world.

In 1789, Congress approved the Bill of Rights and sent them to the states for approval. That same year, the French Revolution unfolded. The upheaval in the two countries has long been compared, especially as the U.S. moved forward with stability and France subsequently endured the Reign of Terror and the Napoleonic era.

Farris said there are key reasons for the very different results of revolutions rooted in freedom, including America’s much deeper respect for personal religious liberty and vastly different views about the nature of man.

“France believed that man was perfectable and that we could create our own utopia, whereas the American Revolution followed the Christian biblical idea that all men are sinners and that’s why you needed limited government, because you can’t trust any man in government to rule faithfully forever,” he explained.

According to Farris, the greatest parallel between the colonial struggle for religious freedom and today’s cultural battles is where the battle lines are drawn. Religious freedom was not championed by the ruling class. “It was a monumental battle,” he said. “It was the common people, who believed in Jesus, who believed the Bible was the authority for their faith and their life, who really fought the war and won. Many of them paid with their lives.”

Farris said the founding generation should serve as inspiration for the religious freedom fights of this century.

“Common people armed with bravery and faith in God can turn anything around,” he said. “I’ve seen it in my own life through the homeschooling movement. We were outnumbered and outgunned by the teachers’ unions day after day after day. We won battle after battle after battle because (we were) common people armed with the Constitution of the United States and belief in the Word of God.”

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Newspaper faces firestorm after attempted crack-down on anti-gay marriage op-eds


waving flagPublished June 27, 2015, FoxNews.com

A Pennsylvania newspaper is facing a firestorm of criticism after the editorial board said it would “very strictly limit” op-eds and letters against same-sex marriage on the heels of Friday’s historic Supreme Court ruling. PennLive/The Patriot-News in Harrisburg has issued a string of statements on its opinion page policies since the ruling — which legalized gay marriage nationwide — and by Saturday morning, appeared to have softened its op-ed restrictions on the subject.  But the newspaper initially took a hard-line stance. Editorial Page Editor John Micek tweeted shortly after the ruling that the newspaper would “no longer accept” or print op-eds and letters to the editor in opposition to same-sex marriage.

He then tweeted:

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The editorial board then began to dial back, in the face of apparent criticism from readers.

A newspaper editorial published online was updated Friday afternoon to clarify the board’s op-ed policy. In the editorial, which cheered the decision and said majority opinion author Justice Anthony Kennedy “nailed it,” the board issued the following statement:

“As a result of Friday’s ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage. 

“These unions are now the law of the land. And we will not publish such letters and op-Eds any more than we would publish those that are racist, sexist or anti-Semitic. 

“We will, however, for a limited time, accept letters and op-Eds on the high court’s decision and its legal merits.” 

Micek also tweeted:

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Picture4This apparently did not satisfy readers, who posted a cascade of critical comments online. One read: “Clearly, PennLive’s policy is not to limit criticism of settled law, but rather to limit criticism of settled law that its editors like.” 

Saying he had been inundated with critical emails and phone calls, Micek then apologized in a column on Saturday morning — saying they had made a “very genuine attempt at fostering a civil discussion” but recognize that “there are people of good conscience and of goodwill who will disagree with Friday’s high court ruling.” you think

He wrote: “They are, and always will be, welcome in these pages, along with all others of goodwill, who seek to have an intelligent and reasoned debate on the issues of the day. These pages, I remind myself finally, belong to the people of Central Pennsylvania. I’m a conduit, I recognize, for them to share their views and to have the arguments that make us better as a people. And all views are — and always will be — welcome.” Different Free Speech Ideologies

Micek stressed that nobody at the newspaper is an opponent of the First Amendment. But he stressed that a civil debate is important, and the opinion page would draw the line when it comes to offensive speech. “More than once yesterday I was referred to as ‘f****t-lover,’ among other slurs,” he wrote. “And that’s the point that I was trying to make with our statement: We will not publish such slurs any more than we would publish racist, sexist or anti-Semitic speech. There are ways to intelligently discuss an issue. The use of playground insults is not among them. And they are not welcome at PennLive/The Patriot-News.”Liberalism a mental disorder 2

WATCH MEYGN KELLY’S BROADCAST BELOW:

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Supreme Court Rules Same-Sex Couples Have Right To Marry Nationwide


Supreme Court Decision

WASHINGTON (CBSDC/AP) — The Supreme Court declared Friday that same-sex couples have a right to marry anywhere in the United States. Gay and lesbian couples already could marry in 36 states and the District of Columbia. The court’s 5-4 ruling means the remaining 14 states, in the South and Midwest, will have to stop enforcing their bans on same-sex marriage. Gay rights supporters cheered, danced and wept outside the court when the decision was announced.

The outcome is the culmination of two decades of Supreme Court litigation over marriage, and gay rights generally. In the majority opinion, Justice Anthony Kennedy wrote that same-sex marriage must be allowed under the United States Constitution.

“No union is more profound than marriage,” Kennedy wrote, joined by the court’s four more liberal justices.

“From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations,” Kennedy wrote.want_rel_liberty_r

Kennedy also wrote the court’s previous three major gay rights cases dating back to 1996. It came on the anniversary of two of those earlier decisions. As Kennedy read his opinion, spectators in the courtroom wiped away tears after the import of the decision became clear. One of those in the audience was James Obergefell, the lead plaintiff in the Supreme Court fight. Outside, Obergefell held up a photo of his late spouse, John, and said the ruling establishes that “our love is equal.” He added, “This is for you, John.”Big Gay Hate Machine

President Barack Obama placed a congratulatory phone call to Obergefell, which he took amid a throng of reporters outside the courthouse.

Kennedy was joined by the four liberal justices of the court: Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer.

Chief Justice John Roberts, along with Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented, and all wrote separate dissents.

Alito wrote, “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

Roberts said gay marriage supporters should celebrate, but don’t celebrate the Constitution.

“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it,” Roberts wrote.

Scalia wrote his dissent “to call attention to this Court’s threat to American democracy.”

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a  majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves,” Scalia wrote.

Thomas wrote, “Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.”

Obama called the ruling a “big step in our march toward equality.” In a statement in the Rose Garden, Obama said that justice arrived like a thunderbolt. “This ruling is a victory for America,” Obama said. The president thanked gay rights supporters who worked tirelessly for this cause. “America’s a place where you can write your own destiny,” he said.tyrants

Democratic presidential candidate Hillary Clinton weighed in, calling the ruling a “historic victory for marriage equality.”War on Christians

Republican presidential candidate Jeb Bush said in a statement that the Supreme Court should have allowed the states to decide. Guided by my faith, I believe in traditional marriage. I believe the Supreme Court should have allowed the states to make this decision. I also believe that we should love our neighbor and respect others, including those making lifetime commitments,” the former Florida governor said. “In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”

D.C. Mayor Muriel Bowser celebrated the ruling saying the court’s recognition of same-sex marriage as a right in every state “affirms our democratic values, that each of us is equal.”Clinton Democrat Party

The ruling will not take effect immediately because the court gives the losing side roughly three weeks to ask for reconsideration. But some state officials and county clerks might decide there is little risk in issuing marriage licenses to same-sex couples. The cases before the court involved laws from Kentucky, Michigan, Ohio and Tennessee that define marriage as the union of a man and a woman. Those states have not allowed same-sex couples to marry within their borders and they also have refused to recognize valid marriages from elsewhere.

Just two years ago, the Supreme Court struck down part of the federal anti-gay marriage law that denied a range of government benefits to legally married same-sex couples. The decision in United States v. Windsor did not address the validity of state marriage bans, but courts across the country, with few exceptions, said its logic compelled them to invalidate state laws that prohibited gay and lesbian couples from marrying.

The number of states allowing same-sex marriage has grown rapidly. As recently as October, just over one-third of the states permitted same-sex marriage.

There are an estimated 390,000 married same-sex couples in the United States, according to UCLA’s Williams Institute, which tracks the demographics of gay and lesbian Americans. Another 70,000 couples living in states that do not currently permit them to wed would get married in the next three years, the institute says. Roughly 1 million same-sex couples, married and unmarried, live together in the United States, the institute says.

The Obama administration backed the right of same-sex couples to marry. The Justice Department’s decision to stop defending the federal anti-marriage law in 2011 was an important moment for gay rights, and Obama declared his support for same-sex marriage in 2012.

(TM and © Copyright 2015 CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2015 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)The Lower you go burke freedom combo 2

Transwhatever


waving flagWritten by avatar ; on 21 June, 2015

URL of the Original Posting Site: http://barbwire.com/2015/06/21/transwhatever

Hold on.trans

Courage, Matt, courage. 

Breathe.

OK, I’m ready.

This is it. I’m coming out. I want the world to know. I’m a black, lesbian platypus trapped in a white, straight guy’s body. This is my truth. It’s my experience. It’s how I identify. It’s my reality (actual reality notwithstanding). Transracial, transgender and transpecies lives matter (#TransLivesMatter), and I’m declaring myself an out and proud member of the LGBTTT community.

Crazy, you say? Don’t judge me, hater. This is my race-species-gender identity and expression, whether real or perceived, and if you refuse to play along, then you’re violating my civil rights. This is my struggle. I demand admission to the wrong bathrooms and showers, the right to play for the other sports teams and unfettered access to your children so I can indoctrinate them till they can’t see straight, or I’ll ruin you. Identify me by whichever stupid pronoun I invent, you cisgender, cisracial, cisspecies bigot, or I’ll glitter bomb you so bad that you’ll be slightly inconvenienced.

Move over, Caitlyn Jenner.

You’re yesterday’s news, Rachel Dolezal.

I’m here! I’m, er, whatever! Get used to it!

It’s my turn. I want my reality show. I want my heavily-Photoshopped, little duckbilled mug on the cover of National Geographic posthaste.

Call me Mrs. Wiggles.

Oh, and transwealthy. I’m that, too. I really need to get my mortgage transpaidoff, so, yeah, I’m transwealthy.

Well? Don’t just sit there. Get busy. Suspend disbelief. Bend the space-time continuum and otherwise adjust your life to accommodate my moonbat pathologies, you microagressive transphobe, or I’ll have your job.

Black, lesbian platypi of the world, unite!

Merriam Webster defines “reductio ad absurdum” as “disproof of a proposition by showing an absurdity to which it leads when carried to its logical conclusion.” You’ve just experienced reductio ad absurdum. “Species identity,” “racial identity” and, to no lesser extent, “gender identity” each represent comically absurd contrivances.Liberalism a mental disorder 2

Yet here we are.

Seriously, thank you Bruce and Rachel for making this rant possible. Thank you, secular “progressives” and mainstream media for overplaying your hand on the whole “transwhatever” twaddle to the extent that Americans at large are beginning to sit up and, with a bold, unified voice, declare, “Um, say what?”just-stop-300x200

These past three weeks have served to set your extremist agenda back years, and that’s fantastic. People get it. Putting the “trans” prefix ahead of some objective truth that you oh-so-very-much-wish weren’t so, does not reverse that truth and make your personal fantasy become everyone’s reality. Ever heard of a “transabled” person? “Transgender” activists have long distanced themselves from the “transabled” community because the two clinical psychoses are effectively different manifestations of the same disorder. The “transabled” person has a sincere, deep-seated belief that he or she is a disabled person trapped in a perfectly healthy and able body. In an effort to align their false identity with objective reality, “transabled” people have amputated healthy limbs, intentionally blinded themselves, had their legs crushed and worse. Ironically, the transabled person who saws off a perfectly healthy arm, pokes out an eye or deliberately cripples healthy legs can actually achieve success. If he does one or more of these things, he will, in fact, become disabled.DO NOT JACKASS

The “transgender” person, on the other hand, can never enjoy this same success. If one who tragically believes that he or she is trapped in the wrong-sexed body goes through with cosmetic “gender reassignment” surgery and maims his or her body by mutilating perfectly healthy reproductive organs (or by having healthy breasts cut off if female), then that person remains as that person began – male or female. “But from the beginning of the creation God made them male and female (Mark 10:6).”

The pitiful paradox here is that, rather than being transformed to the opposite sex (or “gender” as “progressives” prefer) the “transgendered” will, like his or her similarly situated “transabled” counterpart, simply become physically disabled (and sterilized).

Or consider the anorexic. This is the emaciated person who, misperceiving herself to be grossly overweight, will starve herself to death. You don’t help the anorexic by affirming her delusion, calling her “transfat” and giving her liposuction. You feed her. And then you get her therapy.

Leftists love to say that race and “gender” are social constructs. Clever little buggers, aren’t they? This is a classic example of George Orwell’s doublethink. It’s a deliberate tactic by which relativists are able, with a straight face, to call up down, white black and male female. They muddy fixed, objective truths by labeling them “social constructs,” while, at the same time, socially constructing the rhetorical tools needed for fascism. Pretendoids like “gender identity,” “transphobia,” “sexual orientation” and “homophobia” are just a few examples of such social constructs (yes, I made up “pretendoids.” If they can do it, then so can I).Liberalism a mental disorder 2

Evil is Good

For relativism to work – and that’s what we’re talking about here; relativism;

  • reality must be undone,
  • adherents to objective truth pilloried
  • and all dissent stifled.

This is classic cultural Marxism. It’s a bizarre and despotic world in which the left’s upside-down version of “inclusivity” trumps authenticity – a society wherein any recognition of objective truths that “progressives” cannot (more properly, will not) abide, are labeled offensive “microagressions” that, when uttered even offhandedly, demand swift punitive measures.

While penning the infamous majority decision in Planned Parenthood v. Casey, a decision that upheld the phantom “constitutional right” for a mother to have her own child dismembered alive, Supreme Court Justice Anthony Kennedy wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This, of course, is abject nonsense. Still, it is illuminating. It’s the rationale that undergirds, to the extent that anything devoid of substance can undergird anything else, the moral relativist worldview responsible for the postmodern “trans” phenomenon.

But it’s much more than all that.

Justice Kennedy is widely expected to be the swing vote in the Supreme Court’s imminent “gay marriage” decision, Obergefell v. Hodges, which will come down within the next couple of weeks. He will presume to dictate whether black is white, up is down, and whether we must all pretend, under penalty of law, that a man can somehow “marry” another man. Kennedy thinks people have the “right” to redefine the universe.

This is “transsane.”

Which does not bode well for marriage.

Or reality.

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Supreme Court Justice Anthony Kennedy says definition of marriage has stood for ‘millennia’


waving flagBy Khalil AlHajal MLive.com on April 28, 2015, updated April 28, 2015

URL of the Original Posting Site: http://www.mlive.com/news/detroit/index.ssf/2015/04/supreme_court_justice_anthony.html

Plaintiffs from Michigan April Deboer, left, and Jayne Rowse wave to the crowd as they leave the Supreme Court in Washington, Tuesday, April 28, 2015. The Supreme Court is set to hear historic arguments in cases that could make same-sex marriage the law of the land. The justices are meeting Tuesday to offer the first public indication of where they stand in the dispute over whether states can continue defining marriage as

Update: Supreme Court justices press gay rights lawyer early in highly anticipated marriage arguments

Plaintiffs and attorneys celebrate in front of the Supreme Court in Washington, Tuesday, April 28, 2015, as they exit the court following arguments. The Supreme Court heard historic arguments in cases that could make same-sex marriage the law of the land. The justices met Tuesday to offer the first public indication of where they stand in the dispute over whether states can continue defining marriage as the union of a man and a woman

DETROIT, MI — The Supreme Court justice seen by many as the deciding vote in the nation’s same-sex marriage debate made early comments during highly anticipated oral arguments Tuesday could cause worry among gay rights activists.

Justice Anthony Kennedy said that marriage has been understood as the union of one man and one woman for “millennia-plus time,” according to an Associated Press reporter in the courtroom.

“It’s very difficult for the court to say ‘We know better,'” Kennedy said during gay rights lawyer Mary Bonauto’s presentation of arguments.

The hearing was interrupted at one point by a protester.

Crowd cheers as plaintiffs leave the Supreme Court, in Washington, Tuesday, April 28, 2015. The Supreme Court heard historic arguments in cases that could make same-sex marriage the law of the land.

Five lawyers are expected to spend more than two hours presenting arguments.

Full audio from the session is expected to be released later this afternoon.

The court is considering two specific questions.

The first in relation to cases out of Michigan and Kentucky: “Does the 14th Amendment (equal protection) require a state to license a marriage between two people of the same sex?”

And the second on gay marriage cases out of Tennessee and Ohio: “Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?”

Michigan’s case stems from a 2012 lawsuit filed by a Hazel Park lesbian couple who can’t jointly adopt their four children without a legal marriage. April DeBoer and Jayne Rowse were in Washington for the arguments Tuesday. U.S. Rep. Debbie Dingell (D-Dearborn) planned to host a reception for the couple after the hearings. Legal experts supporting the coupled planned to speak to reporters at 4 p.m.

Same Sex Marriage

Many will be listening for clues from Kennedy and Chief Justice John Roberts to gauge the direction of a ruling expected in June or July.

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Did Anthony Kennedy Just Show His Hand On The Obamacare Subsidies Case?


Posted by Sarah Hurtubise, Reporter, March 23, 2015

URL of the Original Posting Site: http://dailycaller.com/2015/03/23/did-anthony-kennedy-just-show-his-hand-on-the-obamacare-subsidies-case/

Complete Message

Justice Anthony Kennedy’s comments in a run-of-the-mill budget meeting Monday may have signaled how he intends to vote in this year’s biggest Obamacare lawsuit over the legality of federal premium subsidies.

In a Monday budget request before the House Appropriations Committee, Justice Anthony Kennedy, typically the swing vote on the Court, made comments that could suggest he’s leaning in favor of the plaintiffs in King v. Burwell. The question in the pivotal case is whether the text of Obamacare restricts the law’s popular premium subsidies to state-run exchanges, of which there are only 14, and bans them from the vast majority of states that use the federally-run exchange, HealthCare.gov.

The battle over the lawsuit about Obamacare subsidies currently before the Supreme Court has focused on whether anyone’s got a solution if the Court’s decision ends up skyrocketing HealthCare.gov premiums.

  • The administration is arguing that the language in the bill doesn’t exclude federal marketplace customers from the subsidies and seems to be trying to convince the Court that ruling otherwise would be catastrophic for the health-care law, and therefore for the Court’s image. Department of Health and Human Services secretary Sylvia Burwell has repeatedly sworn that the administration will not even have a back-up plan prepared in case they lose the case — although anonymous officials have said elsewhere that there is a contingency plan in place.

  • Congressional Republicans, who typically support the plaintiffs’ interpretation that subsidies are for state exchanges only, have countered that tactic by releasing their own plans in the case of a decision eliminating the federal exchange subsidies.

But it may turn out that the Court may choose to not consider the likelihood of Congress restoring the subsidies at all. While he wasn’t overtly discussing King v. Burwell, Kennedy’s comments on Monday certainly suggested that it isn’t the Court’s role to predict what a certain Congress would do in response to their cases.

“We routinely decide cases involving federal statutes and we say, ‘Well, if this is wrong, the Congress will fix it.’ But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes,” Kennedy said Monday. ”That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.”

Court experts immediately grabbed onto the comments, which were in response to a question from Florida GOP Rep. Ander Crenshaw about “politically-charged issues” before the Court, as a likely reference to the furor over King v. Burwell.

Josh Blackman, an assistant professor of law at the South Texas College of Law who specializes in the Supreme Court, points out that strategy to put pressure on the Court due to Congress’s reaction even made its way into the courtroom — much to the chagrin of at least one justice. During oral arguments in the case earlier this month, Solicitor General Donald Verrilli suggested to Justice Antonin Scalia that the current Republican-controlled Congress wouldn’t come up with a fix.

JUSTICE SCALIA: Congress adjusts, enacts a statute that — that takes care of the problem.  It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI:  Well, this Congress, Your Honor, I –­­ I –­­ (Laughter.)

GENERAL VERRILLI:  You know, I mean, of course, theoretically — of course, theoretically they could.

JUSTICE SCALIA:  I ­­– I don’t care what Congress you’re talking about.  If the consequences are as disastrous as you say, so many million people without — without insurance and whatnot, yes, I think this Congress would act.

“It was said in a very snarky or sarcastic way,” Blackman told TheDC about Verrilli’s comments. “I was sitting in the Court and I thought that was inappropriate. I think that’s what Kennedy was referring to here.”

Kennedy made no reference to the case, and Blackman stressed that it’s impossible to know exactly what the justice was thinking. But “he seemed very much directed with how he wanted to handle that question,” Blackman said. “The fact that he said this makes me think this issue is on his mind.”

The Supreme Court’s decision in the case is expected in June.

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