The fate of the Affordable Care Act rests in the hands of the US supreme court. Again.

On Wednesday, justices heard oral arguments in King v Burwell, which challenges the legality of subsidies issued in 34 US states that did not establish their own health insurance exchanges. The whole case is based around an interpretation of just four words –“established by the states”. The court will determine whether those words should be interpreted as written or in the context of the law as a whole.

If the court decides to rule with the four plaintiffs who brought the case, 8 to 9 million Americans could lose subsidies that have helped make their health coverage affordable. If these Americans, many of whom are healthy, cancel their policies the risk pool for the coverage in those states is likely to become sicker and more expensive driving up the cost of healthcare premiums.

The Obama administration and the Affordable Care Act’s other supporters are counting on the supreme court not wanting to undo a 2012 ruling that upheld the law. It is their belief that the court is aware of the damage the loss of subsidies could cause. That is why the scales of justice might be tipped in favor of the healthcare law instead of the plaintiffs, according to Gretchen Borchelt, acting vice president for health and reproductive rights at the National Women’s Law Center.

“It’s never possible to predict the supreme court, but it looked pretty good for the law. It was clear that some of the justices saw that it would be absurd to resolve to strike out the tax credit and leave the entire system in chaos,” she said. “There was some frustration among the justices that they were even hearing this case. Justice [Elena] Kagan at one point referred to the ‘never-ending saga’ of all of these cases trying to bring down the healthcare law.”

“It’s clear that justices [Stephen] Bryer, [Ruth Bader] Ginsburg, Kagan, and [Sonia] Sotomayor think that the plaintiffs’ argument is simply not credible,” said Ron Pollack, executive director of Families USA and a member of the US supreme court bar.

Here are a number of other observations from Pollack and Borchelt, both of who were in the chambers during the oral arguments hearing.

What if the lawsuit just went away?

At the very beginning of the hearing, Michael Carvin, the lawyer representing the four plaintiffs, had to answer one specific question: did the four individuals who brought the lawsuit actually have a legal standing to do so?

“Justice Ginsburg started off with that right away and really drilled down into whether these individuals that are bringing these cases were affected and whether they had a claim here,” Borchelt said. “That took up more of the discussion than most people had expected.”

[A]s you know, each plaintiff, or at least one plaintiff, has to have a concrete stake in these questions. They can’t put them as ideological questions.” – Justice Ruth Bader Ginsburg

It had previously come to light that two of the four plaintiffs are US veterans and, therefore, might have been eligible for special coverage.

While determining whether the plaintiffs have legal standing in the case is of importance, “there is an interest for the public and for this country that this gets resolved”, Borchelt explained. Throwing the case out on standing could lead to another round of litigation.

Pollack said the supreme court could decide to send the case back to the lower court to determine whether any of the plaintiffs have standing. “I wouldn’t bet on it happening, but it could happen,” he said. “The standing issue did arise very explicitly.”

The main reason the case is not likely to go away, however, is that even the government admitted that at least one of the plaintiffs might have standing.

When chief justice John Roberts, who remained mostly quiet for the duration of the hearing, asked the solicitor general Donald Verrilli if he was raising a standing question during his oral argument, Verrilli responded that it was the government’s “understanding that at least one of the four would be liable for a tax penalty”.

Could Kennedy be the swing vote in favor of ACA this time around?

“It was clear that even the most conservative justices like justice Scalia understood that there would be enormous damage if the subsidies are withdrawn. Justice Kennedy made that pretty clear,” Pollack said. “Clearly this has pierced the consciousness of the court – that if they rule to withdraw the subsidies it would cause an enormous harm in each of the states.”

If the supreme court were to rule in favor of the plaintiffs, the US government would have to withhold subsidies in states that don’t have their own subsidies. Essentially, the ruling would put pressure on states to create their own exchanges so that their residents could continue to receive healthcare subsidies.

“Justice Kennedy was very focused on whether it is a coercive statute and that could be unconstitutional. So he was proposing different legal theory than what has actually been brought to the court,” Borchelt said.

Both Borchelt and Pollack suggested that Kennedy’s questions could indicate that he might be willing to uphold the tax credits in order to avoid forcing states to establish their own exchanges to retain funds for the subsidies.

Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the states are being told: ‘Either create your own exchange, or we’ll send your insurance market into a death spiral.’ - Justice Anthony Kennedy

That statement suggests that Kennedy’s vote is in play, said Pollack. In 2012, Kennedy opposed the supreme court’s decision to uphold the Affordable Care Act and wrote the dissenting opinion. This time around, he and the chief justice John Roberts could be the swing votes, according to Pollack.

“Chief justice Roberts was mostly quiet. He did not speak up much at all during the arguments so it’s hard to tell where he is, but obviously we know that he was one of the deciding votes upholding the law in the first place. It seems extremely unlikely that he would have done that only to now let the law unravel,” said Borchelt.

Missing piece of the puzzle: 8 to 9 million Americans

If the court rules in favor of the plaintiffs, 8 to 9 million Americans could lose their subsidies. These Americans were barely mentioned during the hearing, said Borchelt.

I was disappointed that there wasn’t discussion of the real people who could be affected especially because we know that the law is working and people are getting these benefits and what the big difference this has made for them. There was no real discussion about the harm that would befall the individuals who are benefiting from the law, which I think was unfortunate.