(Reuters) – This week the U.S. Supreme Court wrapped up the last
oral arguments of its current term. Now comes the nationwide angst of waiting – as long as two months – for decisions,
particularly the one that will resolve the most high-stakes and closely watched case of the year: the challenge to the
Obama-sponsored healthcare law.
networks report live on the sidewalk during the third and final day of legal arguments over the Patient Protection and
Affordable Care Act at the Supreme Court in Washington, March 28, 2012. REUTERS/Jonathan Ernst
The collective impatience is fueling a mini-industry of rumors, wagers and speculation
not seen since the Bush v. Gore case of 2000, when a presidential election hung in the balance. And perhaps not even then,
because the court quickly put an end to the guessing game by issuing a ruling the day after the case was argued.
A
Yale Law School professor has bet a Cato Institute fellow $100 that the healthcare law will be upheld. More than 1,300 trades
on the decision have been placed on the Dublin-based online market InTrade. (As of Wednesday, the odds on InTrade were 61
percent that the justices will strike down the core part of the law, which requires most people to buy health insurance.)
Predictions on fantasySCOTUS, an online tracker for court enthusiasts, have jumped. The site features the banner “Predict the
healthcare cases and win a $200 Amazon.com gift card.”
News outlets, including this one, are fielding (and largely
disregarding) tips from would-be sources who claim they know somebody who knows something about action on particular legal
issues, a possible vote split, or the supposed date the decision will be published. Even attorneys who practice at the
nation’s highest court, who are the first to insist that no one should ever trust the whisper mill, have found themselves
looking for signs and portents.
Randy Barnett, a Georgetown law school professor who represents a group of
small-business plaintiffs challenging the healthcare law, said another law professor told him he had heard from someone close
to Justice Anthony Kennedy that he had voted to strike down the heart of the law. Barnett said he could not help but be
encouraged – but then quickly added, “I have no reason to put any stock in it.”
The reality at the Supreme Court is
that those who know don’t talk, and those who talk don’t know. The justices take their votes in secret, going around the
table in order of seniority, with no clerks or secretaries present. Draft opinions are closely held in chambers. Discarded
versions are burned or shredded. The clerk’s office does not know the outcome of a case until a decision is about to be
released. And the release date is not set until all the writing and rewriting by the majority and dissent is
done.
Each justice has four law clerks who take a pledge of confidentiality. Then there are about 400 employees at the
court building, virtually none of whom would be in a position to know the outcome of a case until it was nearly ready to be
made public. Frank Lorson, a former chief deputy clerk of the court who worked there from 1972-2002, said the clerk’s
administrative office would not have access to decisions until they were set for distribution. “Loyalty to the institution
and to the justices” is overriding, he said.
Supreme Court spokeswoman Kathy Arberg said the court would not comment
on its internal deliberations.
So rare are leaks that it has been more than 25 years since any word of a case’s
resolution apparently slipped out. In 1986 then-ABC TV journalist Tim O’Brien reported that the court would, the following
day, strike down part of a law that required the U.S. government to balance the budget. O’Brien’s prediction of the outcome
was correct – but the ruling did not come until weeks later.
The constant buzz these days is just one more indication
of the high stakes in the dispute over the law, enacted in March 2010, that continues to divide Democrats and Republicans
and, according to polls, much of the country. No matter how the court rules, its decision is likely to become a flashpoint in
the upcoming presidential election and an enduring topic of constitutional debate.
“The case has a central role in our
political life right now,” said Washington lawyer Cliff Sloan. A former law clerk to now-retired Justice John Paul Stevens,
Sloan said he is constantly asked for predictions. He declines to make his thoughts public. As for leaks, “That happens in
mystery novels, not at the Supreme Court.”
Paul Clement, who argued the case for the 26 states challenging the law,
said he has not heard much speculation and has brushed off what he has heard. He chalks up the rumors to the many people who
are paying close attention to the case but are unfamiliar with the ways of the justices and need to fill the vacuum until the
end of June. “I’ve been dealing with the Supreme Court for 20-plus years,” Clement said. “This is not how they work. Nobody
leaks.”
Some things can be divined, based on the court’s longstanding practices: A preliminary vote was likely taken
at the end of the argument week, on March 30, and the justices have probably begun writing. Because the court traditionally
recesses at the end of June, its most complicated cases tend to come just before then.
Chief Justice John Roberts, or
the most senior justice on the winning side, would have already assigned the writing of the majority opinion. (The most
senior member of the losing side assigns the dissenting opinion, although any justice can chime in with a dissent or
concurring statement.)
After that, anything can happen. Votes can shift, as can the legal rationale that would guide
all lower-court judges in future related disputes. A justice who starts out writing for the majority might lose a crucial
fifth vote and suddenly end up penning a dissenting opinion. One well-known change occurred in 1992 when Justice Kennedy
switched his position in Planned Parenthood v. Casey and provided the key fifth vote upholding the right of a woman to end
her pregnancy. But such secrets become known only years later when the papers of deceased justices are made public at the
Library of Congress or other archives. In the abortion case, the details were laid out in the papers of the late Justice
Harry Blackmun.
Tom Goldstein, a Washington lawyer and founder of the website SCOTUSblog, said he briefly thought he
was observing a sign when he argued a case before the nine justices on April 16 – their first day back after the late March
healthcare hearing. When the justices ascended the bench, Goldstein thought the four liberals seemed in particularly fine
moods.
He caught himself thinking – only fleetingly – that their good spirits might have meant a majority had voted to
uphold the law. “But,” added Goldstein, “it flashed through my mind just as quickly that what I saw meant
nothing.”
(Reporting by Joan Biskupic; Editing by Amy Stevens)
