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Health Reform’s Fate: How the Supreme Court Will Decide

March 30, 2012 at 12:00 AM EDT
After three days of hearings on health care reform, Supreme Court justices held a secret preliminary vote Friday to deliberate the Affordable Care Act's future. Their decision is expected in late June. Jeffrey Brown and The National Law Journal's Marcia Coyle discuss the steps ahead as the justices begin their deliberations.

JUDY WOODRUFF: The nine justices of the Supreme Court took their initial votes today after three days of arguments this week on President Obama’s health care law. Their decision is not expected until late June.

The vice president told CBS in an interview that the administration’s focus is on implementing the two-year-old law, not on the court’s deliberations.

VICE PRESIDENT JOSEPH BIDEN: No one’s made any money betting an outcome of cases based on the oral arguments and the questions asked. We think — we think the mandate and the law is constitutional, and we think the court will rule that way.

I just think we should focus on what is the law doing for people now, and what would happen if, in fact, the Republicans were able to repeal it.

JEFFREY BROWN: Former Massachusetts Gov. Mitt Romney signed into law a bill similar to the one passed on the federal level. But he told an audience in Wisconsin today that, if the court doesn’t strike down the Affordable Care Act, he hopes to repeal it.

MITT ROMNEY (R): If Obamacare is allowed to stand, government will directly control almost half of the U.S. economy. Government must have — it’s got to be smaller. It has got to have strict limits placed on its power. Obamacare violates both of those principles, and, if I’m president, I will repeal it.


JUDY WOODRUFF: Also today, the Republican National Committee was criticized for releasing a Web video that manipulated audio of U.S. Solicitor General Donald Verrilli. The audio was edited so that it would exaggerate pauses he made while arguing Tuesday for the government in favor of the health care law.

DONALD VERRILLI, solicitor general of the United States: Because the — the — the — excuse me.

JUDY WOODRUFF: Joining us now is Marcia Coyle with The National Law Journal. She covers the Supreme Court for the NewsHour and she was there for the arguments this week.

And welcome back.

MARCIA COYLE, The National Law Journal: Thanks, Judy.

JUDY WOODRUFF: So, of all the cases that come to the Supreme Court, clearly this among the most important, Marcia, not just judging health care reform, but judging the ability of Congress to make law.

MARCIA COYLE: That’s right, Judy.

I mean, very fundamentally, the court is examining the scope of Congress’ power to make laws under the Constitution. So whatever the court decides in the health care case, it’s likely to have an impact on Congress’ ability to address problems down the road that are problems with national scope or nature.

The court may announce limits on Congress’ power. We don’t know. But it certainly goes beyond the health care law that is at issue right now.

JUDY WOODRUFF: So, today, the justices, after the hearings earlier this week, they met. They had a conference. Tell us what goes on. . .

MARCIA COYLE: Sure. There is a room off the chief justice’s chambers. It’s a stately room with a fireplace, and it also has an oblong table.

The chief justice sits at the head of the table. Justice Scalia is at the other end. He is the senior associate justice. And the chief, by tradition, presents the case to the other justices, says his vote, gives an explanation. And then, by seniority, they go around the table announcing their votes.

If the chief justice is in the majority at the end of that vote tally, he will assign the majority opinion either to himself perhaps or to another justice. And then, if he’s not in the majority, the justice who is next in line most senior in the majority will do the assigning of the opinions.

Then we go through a period where the justices are drafting opinions, they’re exchanging thoughts, and the ultimate result probably will be in June.

JUDY WOODRUFF: So do they talk about the case between now and the end of June, or do they just exchange written opinions?

MARCIA COYLE: They really do primarily communicate through the draft opinions. There is some discussion in conference when they vote, but, really, this is a body that talks through its writings.

JUDY WOODRUFF: And, Marcia, do they typically hold to the same position that they held today, the day of this conference, or could that change?

MARCIA COYLE: Well, probably more often than not, but there have been examples throughout history, and even in recent times, of justices changing their minds. Even the justice assigned to write the majority opinion may change his or her mind.

There was an example I think in the ’90s when Justice Kennedy was writing a majority opinion involving prayers at high school graduations, and he changed his mind, and he ended up writing a majority opinion, but with a different four justices joining him.

JUDY WOODRUFF: But, typically, it’s felt that — it’s believed they stick to the opinions. . .

MARCIA COYLE: Generally, they do, I think.

JUDY WOODRUFF: So a political question, Marcia. You’ve seen this ad that — the Web ad that the Republican National Committee put out today. . .


JUDY WOODRUFF: . . . essentially doctoring some of the audio of the court argument on Tuesday, making the government attorney’s presentation sound worse than it was, more hesitation on his part, sipping water and so forth. What are your thoughts about that?

MARCIA COYLE: Well, first of all, the solicitor general, Donald Verrilli, had something of a frog in his throat. And he did clear it and got through his argument.

As far as the RNC ad goes, my initial thought is, it’s dishonest. If it’s dishonest, it’s inexcusable. My second thought was that it may well have an impact, beyond that, on the public’s ability to get the court to be more transparent in its proceedings.

The court has resisted cameras in the courtroom, partially out of fear that it will be misused on TV. Chief Justice Roberts this week bent his rule of putting up audio of the arguments regularly on Fridays of arguments week, so that we could have it on the same day. And now it may be there will be some justices who will say, well, look, even the audio is abused. No way we will let cameras in the courtroom.

So I think really the harm is to the public more than anything.

JUDY WOODRUFF: Well, we will leave it there and we will be watching.

Marcia Coyle, thank you.

MARCIA COYLE: My pleasure, Judy.

JEFFREY BROWN: You can find blogs from Marcia and all of our coverage of the court hearings this week archived on our health page at