Analysis: In Secret, Justices to Decide Fate of Health Care Overhaul

By Bill Mears Cnn Supreme Court Producer | St. Joseph News-Press, March 3, 2012 | Go to article overview

Analysis: In Secret, Justices to Decide Fate of Health Care Overhaul


Bill Mears Cnn Supreme Court Producer, St. Joseph News-Press


WASHINGTON (CNN) -- The public drama surrounding the Supreme Court's extraordinary three-day review of President Obama's health care reform law has faded, but the real intrigue has just begun. You just won't see it, and the final yet-unwritten chapter will come unannounced.

The nine justices met privately Friday in their weekly closed- door conference, and were expected to vote -- at least preliminarily -- on the four healthcare cases. Writing assignments will now be made, and the weeks-long process of crafting opinions will commence - - a tedious, arduous, often contentious exercise in judicial craftsmanship and diplomacy. And all of this will be done in secret - - no press releases, no leaked behind-the-scenes spin.

"This case is on a rocket ship," said Thomas Goldstein, a Washington lawyer and publisher of SCOTUSblog.com. "Because there may be as many as four decisions, the justices work collaboratively. The majority opinion writer circulates it for other people to comment, dissenters will circulate their opinions and that process will go back and forth, back and forth until about mid-June, when they will just get down to finalize it."

The opinion-writing exercise is little-known, and the court likes it that way. Only the justices and their law clerks will have any real idea how these rulings will be framed and crafted. Consistently predicting the outcome is a time-honored Washington parlor game, but rarely successful.

"Obviously everybody in a case of this magnitude is trying to read tea leaves. I think it's hard to read tea leaves," Paul Clement, lawyer for the 26 states opposing the law, told CNN Correspondent Kate Bolduan, moments after the last of the cases were argued Wednesday. "I suppose if half the justices were snoozing through it, that would have been a bad sign for my side of the case. They obviously weren't snoozing through it." Anything but. A little bit of everything The public sessions were a blend of question-and- answer fusillades from the bench, mixed with often outrageous hypotheticals testing the limits of the law. The six hours of debate had almost everything. A sample:

Funny: Chief Justice John Roberts: "You have another 15 minutes" to argue your case. Solicitor General Donald Verrilli: "Lucky me, lucky me."

Wonky: Verrilli: "The language in 7422 (a) is virtually identical to the language of 742 (a)...." Justice Anthony Kennedy, interrupting: "Although in the refund context, you have the sovereign immunity problem...." Don't understand what they are talking about here? Neither do we.

Dramatic: Justice Sonia Sotomayor: "We're going to tie the hands of the federal government in choosing how to structure a cooperative relationship with the states. We're going to say to the federal government, the bigger the problem, the less your powers are."

Emphatic: Justice Ruth Bader Ginsburg: "The people who don't participate in this market are making it much more expensive for the people who do." It's all about the mandate The first lawsuits challenging the health overhaul began just hours after the president signed the law two years ago this month. After a series of reviews in various lower federal courts, the petitions arrived at the high court in November, when the justices decided to review them. Written briefs were filed, oral arguments held.

The court is considering four key questions: Does the law overstep federal authority, particularly with the "individual mandate"? Must the entire Patient Protection and Affordable Care Act be scrapped if that key provision is unconstitutional? Are the lawsuits brought by the states and other petitioners barred under the Anti-Injunction Act and must they wait until the law goes into effect? Are states being "coerced" by the federal government to expand their share of Medicaid costs and administration, with the risk of losing that funding if they refuse?

Everything hinges on the mandate, also known as the "minimum coverage" or "must-buy" provision. …

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Analysis: In Secret, Justices to Decide Fate of Health Care Overhaul
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