My guess: the DC Court of Appeals will rehear the case
en banc rationalizing the decision to do so by describing it is a matter of great public interest. Because Obama has recently stacked court with three judges whom the Republicans could not filibuster after they laid down and submitted to Majority Leader Reid's change of rules, the full court will reverse the decision below and uphold the power of the IRS to make payments to exchanges set up by the IRS.
The Supreme Court will probably take the case especially if a different Court of Appeals rules to the contrary. However, we go into the Supreme Court with four justices presold (out) and questionable characters in Chief Justice Roberts and Kennedy whom we need or the case is lost. I have far more confidence in Kennedy than I do in Roberts.
God only knows what kind of considerations will go through Robert's mind, that is, whether to redeem himself by declaring the payments unlawful or to vindicate himself by declaring them unlawful.
There is a possibility that the Supreme Court will not take up the case which will be more likely if there is no contrary decision in any other federal court and that would imply that the en banc decision which I anticipate in the DC Court of Appeals would stand in the payments would be held to be illegal. My best guess is that another Court of Appeals will agree with this decision and declare the payments illegal. If not, the high court may regard the decision below as one of statutory interpretation and not of constitutional import and therefore decline the case.
I tend to think that SCOTUS will ultimately take and decide this regardless of what the packed DC Circuit does.
If for no other reason than that we have four (original dissenters) who still hate the law, I think they will hear the case. As long as the composition of the court doesn’t change I think there is a decent chance that Roberts will join the four original dissenters and say that it is not the job of the court to protect legislation from its own explicit language.
The court did just that in a recent EPA case with the five justices we need in this case.
It’s the best legal challenge to the ACA available from my vantage point.
If Roberts had gone against Hobby Lobby I wouldn’t even hold out any hope on this one. But his willingness to piss off the administration makes me think his vote is seriously in play here.