2014年经济学人 最高法院 起草法案,郑重起誓,划分选区（在线收听）

The Supreme Court

Drafting laws, vows and maps

Obamacare, gay marriage and race: the justices' term is heating up

TWO years ago Obamacare survived a constitutional assault by the narrowest of margins, but its opponents have not given up. On November 7th the Supreme Court agreed to hear another challenge which, if upheld, could gut the president's health-care law.

In King v Burwell the challengers are demanding that Obamacare be enforced as it was written. Since it was badly written—Congress passed a shoddy and confusing first draft, which Barack Obama signed—this could cause problems. The law specifies that subsidies will be available to people who buy their health insurance on an exchange “established by the State”. At the time, Democrats assumed that the states would all set up exchanges, but 27 refused to do so. Mr Obama got round this by setting up a federal exchange and offering subsidies through that, too. The plaintiffs say such subsidies are illegal.

The administration argues that Congress never intended to doom its own law with a four-word time bomb. Over 5m Americans have bought their policies via federal exchanges. If the justices strike down their subsidies, millions could lose coverage, or have to pay more for it out of their own pockets. The court will hear the case early next year and rule by June.

Gay marriage may also soon arrive on the justices' docket. On November 6th the Sixth Circuit became the first federal appellate court to uphold a state ban on gay marriage. Four circuits have nullified similar bans in recent months, so the new ruling creates a split. Are same-sex marriage bans compatible with the Constitution's guarantee of “the equal protection of the laws”? Only the Supreme Court can settle the matter. It may do so next year.

On November 12th the Supremes heard a tricky case involving race and gerrymandering. The Alabama Legislative Black Caucus and the Alabama Democratic Conference claim that the Republican-controlled Alabama legislature violated the 14th Amendment (the equal protection clause, again) when it redrew electoral boundaries in 2012. The new map, the appellees argue, stuffed more blacks into areas where blacks already outnumbered whites, creating districts with black supermajorities topping 70% and solidifying the Republican Party's hold on other districts.

Both sides have been opportunistic. Democrats are now railing against Alabama for using “rigid racial targets” in redistricting. Yet it was they who insisted that the state create the majority-black districts in 2001, to boost black voting power. Justice Antonin Scalia said to Richard Pildes, a lawyer for the appellants: “You're making the argument that the opponents of black plaintiffs used to make here.” Chief Justice John Roberts implied that it was unfair to ask Alabama to “hit a sweet spot” between too little racial gerrymandering and too much. Where to draw the line? (Which is, of course, the question.)

Alabama, for its part, claims it is merely trying to comply with the Voting Rights Act, which has been interpreted to favour the creation of majority-minority districts wherever possible. As recently as last year, however, Alabama Republicans were challenging one part of the Voting Rights Act, in Shelby County v Holder. (They succeeded.)

Today, no one doubts that Alabama Republicans' real aim is to draft an electoral map that favours their own party. That is, after all, what both parties invariably do when they get the chance. Justice Elena Kagan scoffed: “Nobody would say that [the Voting Rights Act] required you to maintain a 78% [black] district.” Yet, as Justice Samuel Alito pointed out, gerrymandering based “purely on partisanship rather than on race” is perfectly legal. Whether it should be is another question.