Summary:Winners and losers are the natural consequence of the American legal system. In the Supreme Court, five majority votes among the nine members are enough to fundamentally change lives and legacies.
The high court in coming days will issue rulings in
perhaps its most important appeal in a dozen years: whether the sweeping health
care law championed by President Barack Obama will be tossed out as an
unconstitutional exercise of congressional authority.
The stakes cannot be overstated -- what the justices
decide on a quartet of separate questions will have immediate and long-term
impact on every American, not only in the field of medicine but in vast, untold
areas of "commerce." Health care expenditures alone currently make up
18% of the U.S. economy, and the new law promises to significantly expand that
Five scenarios: Health care options before the justices
"I think the justices probably came into the
argument with their minds made up. They had hundreds of briefs and months to
study them," said Thomas Goldstein, publisher of SCOTUSblog.com and a
prominent Washington attorney. "The oral arguments [in March] might have
changed their minds around the margin. But we won't find out until the end of
A century of federal efforts to offer universal
health care culminated in the 2010 passage of the Patient Protection and
Affordable Care Act. After months of bare-knuckled fights over politics and
policy, the legislation signed by Obama reached 2,700 pages, nine major
sections and 450-some provisions.
At issue is the constitutionality of the
"individual mandate" section -- requiring nearly all Americans to buy
health insurance by 2014 or face financial penalties. Twenty-six states in
opposition say if that linchpin provision is unconstitutional, the entire law
must go. The partisan debate around such a sweeping piece of legislation has
encompassed traditional hot-button topics: abortion and contraception funding,
state and individual rights, federal deficits, end-of-life care, and the
overall economy. The high court now has the final word.
The court will not say precisely when the health
care opinions will be released, but the last scheduled public session of the
term is set for June 25. Depending on how long it takes the justices to finish
up, that deadline could easily slip a few days.
The justices have already secretly voted on the
health care cases, as well as a dozen or so other separate appeals. They met
privately as a group just days after the late March arguments, voting
preliminarily. Individual justices were assigned to write the one or more
opinions, as well as separate dissents. Only they and their law clerks know how
this will end.
And no one is talking -- that's an unbroken
tradition of discretion rare in leak-loving Washington.
"At the Supreme Court, those who know, don't
talk. And those who talk, don't know," Justice Ruth Bader Ginsburg said
Friday in a speech at the American Constitution Society convention in
The court holds fast to an unofficial but
self-imposed deadline to have all draft opinions finished by June 1. They are
circulated to colleagues, and subsequent dissents and concurrences must be
submitted by June 15. Nothing is final until the decision is released to the
public. Votes can and do change at the last minute.
The last two weeks beginning Monday will be the
busiest, most chaotic time. Justices and their law clerks are holed up in
chambers, furiously working to frame and craft the final opinions, making sure
every fact, every footnote, every legal theory is fully checked and
articulated. The nine members know they are writing their legacies with this
one issue. The outcome may be disputed, but the constitutional reasoning-- at
least in their own minds-- must be sound.
"Getting themselves organized, identifying the
different majorities, getting opinions written and circulated in dissents and
concurrences will really test their capabilities in the final days,"
Health care's big four issues: What the justices are tackling
The opinion-writing exercise is little-known, and
the court likes it that way. 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
March 28. "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."
The first lawsuits challenging the health care
overhaul began just hours after the president signed the legislation two years
ago. 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
entire law goes into effect in 2014?
• 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. It is the key
funding mechanism -- the "affordable" aspect of the Patient
Protection and Affordable Care Act -- that makes most of the other 450 or so
It would require nearly all Americans to buy some
form of health insurance beginning in 2014 or face financial penalties. May the
federal government, under the Constitution's Commerce Clause, regulate economic
The coalition of 26 states led by Florida says
individuals cannot be forced to buy insurance, a "product" they may
neither want nor need. The Justice Department has countered that since every
American will need medical care at some point in their lives, individuals do
not "choose" to participate in the health care market. Federal
officials cite 2008 figures of $43 billion in uncompensated costs from the
millions of uninsured people who receive health services, costs that are
shifted to insurance companies and passed on to consumers. The law would expand
insurance by at least 30 million people, according to government estimates.
As with multiple questions, the justices have
multiple options: allowing the mandate to stand or fall; if it falls, keeping
all, parts, or none of the rest of the law; issuing a definitive statement on
the centuries-long tension between federal and state power; treating health
care as a unique aspect of "market" activity, allowing an exception
upholding the law; and deciding who will craft the all-important opinions.
"Anyone who says the individual mandate isn't
in any trouble is just deluding themselves," Goldstein said. "It's
not clear that it will be struck down but you cannot say from those arguments,
that it's anything other than a toss-up. The [Obama] administration had as hard
a time from those justices as they could have expected, and they are
desperately hoping that they can pull together a fifth vote in favor of the
Timeline of the health care law
The justices never discuss internal strategy, and
the full story of how health care was decided in the marble halls of the court
may never be fully known.
The current waiting game has prompted anxiety and a
touch of political rancor outside the court.
Legal sources say the White House has quietly set up
an informal "war room" of sorts, ready to respond when the rulings
are handed down.
Low-key coordination is under way between the White
House Counsel's office, Political Office, senior Oval Office and campaign
staff, Capitol Hill Democrats, as well as select outside advisers and friendly
Republicans are quietly doing the same, with
outreach to conservative activists and candidates. Managing the message will be
all-important in a presidential election year.
Publicly, Obama has said he was "confident that
the Supreme Court will not take what would be an unprecedented, extraordinary
step of overturning a law that was passed by a strong majority of a
democratically elected Congress, and I just remind conservative commentators
that for years, what we've heard is, the biggest problem on the bench was
judicial activism or a lack of judicial restraint, that an unelected group of
people would somehow overturn a duly constituted and passed law."
Some conservative critics interpreted those remarks
as a challenge to judicial authority, suggesting Obama was putting direct
political pressure on the high court. Patrick Leahy, D-Vermont, chairman of the
Senate Judiciary Committee, urged the bench -- and Chief Justice John Roberts
in particular -- to "do the right thing" and uphold the mandate.
Presumptive Republican presidential candidate Mitt
Romney used the same words when urging a different outcome.
"I hope they do the right thing and turn this
thing down," Romney told donors last week in Atlanta. "And say it's
unconstitutional, because it is."
No one doubts the health care cases will have an
immediate impact on Obama's re-election chances, as well as the long-term
credibility of the federal courts, which are supposed to be beyond politics.
Recent polling suggests a "legitimacy
crisis" in the Third Branch. A New York Times/CBS poll this month shows
only 44% of Americans approve of the Supreme Court's job performance -- a
steady drop over recent years. Three-quarters of those polled now say the
justices are sometimes influenced by their political views.
A separate CNN/ORC International poll released June
8 found a majority -- 51% -- oppose the health care law in general, most
because they think it is "too liberal," while 13% think it is
"not liberal enough;" 43% of those surveyed favor the law.
The key players could be two conservatives on the
court: Roberts and Justice Anthony Kennedy, long labeled a "swing"
"With the four more liberal justices almost
certain to vote to uphold the individual mandate, the administration is really
hoping for the votes of either the chief justice, who signaled that he had
questions for both sides," said Goldstein, "or the traditional swing
vote in the court, Anthony Kennedy, who really was tough on the government
lawyer but toward the end suggested that maybe insurance was special enough
that he could vote to uphold the mandate."
Roberts has long talked about achieving consensus on
divided issues, saying it brings long-term credibility and public confidence to
the court's work. It has been mostly a pipe dream, as his nearly seven years of
leadership has shown a continuing 5-4 conservative-liberal split on most
"The court is bitterly divided over the
individual mandate," Goldstein noted, "so if the administration is
going to get his vote, it's either because he believes in a broad federal power
or that he doesn't believe that the Supreme Court shouldn't overturn such an
incredibly important economic statute."
Health care will soon enter the history books, among
the handful of the high court's greatest cases, the outcome no doubt monumental
-- legally, politically, socially. An issue that affects every American will
naturally attract that kind of attention.
Picking winners and losers at this stage is a
subjective, even partisan, exercise. The court itself will be both cheered and
vilified however it rules. But as an institution, it has survived similar
crises of confidence over its discretionary authority: slavery, racial
integration, corporate power, abortion -- even Bush v. Gore.
Rapid-fire reaction to health care will be swift and
furious, from the campaign trail, professional punditry, and halls of
government. Some individual Americans stand to gain from the decision, others
could be hurt -- financially, emotionally, and physically.
So why entrust all this in the hands of nine judges?
The Supreme Court usually gets the last word in
these matters, regardless of whether one agrees with their decisions -- even
matters of life and death, which many argue are the stakes in this health care
Justice Robert Jackson may have put it best:
"We are not final because we are infallible, but we are infallible only
because we are final."