Did Justice Thomas Foreshadow The Downfall Of Obamacare In Baker Botts?

By no means do we think that we might reliably predict the outcome of such a politically charged case as King v. Burwell, No. 14-114, the latest challenge to the Affordable Care Act.

But for those who like to read tea leaves from the Supreme Court, section III.B.2 of the Court's decision (released yesterday) in Baker Botts LLP v. Asarco LLC, No. 14-103, might be worth paying attention to. The upshot of Baker Botts is that the law firm could not recover attorneys' fees incurred in defending its fee application in bankruptcy because § 330(a)(1) of the Bankruptcy Code does not authorize bankruptcy courts to award fees for defending fee applications.

Justice Thomas wrote for the Court (with a majority consisting of himself, Chief Justice Roberts, and Justices Scalia, Kennedy, and Alito), and Justice Sotomayor wrote a one-paragraph concurrence, joining all but section III.B.2 of the Court's decision.

What was so objectionable about section III.B.2? It addressed the government's dire predictions for the bankruptcy bar if the Court would not permit Baker Botts to recover the fees at issue, and, in the section's penultimate paragraph, the Court—that is, those five justices in the majority—flatly rejected arguments that “substitut[e] policy-oriented predictions for statutory text.” Slip op., at 12.

Here is the paragraph in full:

More importantly, we would lack the authority to rewrite the statute even if we believed that uncompensated fee litigation would fall particularly hard on the bankruptcy bar.Our unwillingness to soften the import of Congress' chosen words even if we believe the words lead to a harsh outcome is longstanding...