Read these tea leaves: Conservative justices on the Supreme Court sound angry in their dissents this week because they already know that the court on Thursday will uphold the Obama administration’s health care law.
Or how about: Justice Ruth Bader Ginsburg, a presumed health-care law supporter, sounded pretty darn happy when she talked recently to the liberal American Constitution Society. Was this, in poker terms, another tell?
But wait! Perhaps, as former Supreme Court clerk Ed Whelan suggested Wednesday, Justice Antonin Scalia tipped everyone off that he’ll be in a majority striking down the law because he’s already read from the bench his unofficial quota of dissenting opinions and that means he won’t be dissenting on health care.
True? False? Who knows? One certain fact: Speculation has run riot in advance of the health care ruling, due Thursday morning. The tense wait has provoked obsession over everything from a justice’s tone of voice and vacation plans to a short-lived, Internet-fed rumor that the decision was about to be issued on, ummm, May 24.
Rumor followers, Ginsburg said in her recent speech with some evident satisfaction, got their just deserts.
Put another way, she noted, “Those who know don’t talk, and those who talk don’t know.”
Those who don’t know vastly outnumber those who do, which might explain why it’s gotten so noisy. In any event, the blather is inevitable when the facts are so scarce and the stakes are so high. In what will be a set of interlocking decisions announced shortly after 10 a.m. Thursday, the court is set to declare whether Obama’s health care law rises or falls, in whole or in part.
The justices must decide whether Congress exceeded its constitutional authority under the Commerce Clause when it imposed the individual mandate, requiring most U.S. residents to obtain health insurance or pay a fee. The court also must decide whether Congress improperly coerced the states by threatening to withhold Medicaid funds unless they expanded coverage. And, not least, the court must decide whether the rest of the law survives if the individual mandate falls.
In search of answers, would-be soothsayers have been picking apart the points raised in the record 136 amicus briefs and in the questions asked and answered during more than six hours of oral argument in March.
“Obviously, people have flyspecked the transcript of these arguments back and forth,” said Paul Clement, the attorney for Florida and other states that are challenging the law, “but the way it was structured doesn’t allow you to draw conclusions the way you might have . . . if it had been some sort of four-hour free-for-all.”
Some predictions reflect political framing rather than rigorous analysis. Earlier this month, citing no particular evidence, House of Representatives Minority Leader Nancy Pelosi D-Calif., opined that the court would uphold the law on a 6-3 vote. Other predictions appear more rooted in a microscopic reading of court practice.
The detail-oriented SCOTUSblog website, for instance, predicts that Chief Justice John Roberts Jr. has written the majority opinion in health care because he hasn’t yet authored a decision from cases heard in March and April. Typically, the court spreads decisions around evenly.
In Congress, the Republican lawmakers who united in fighting the health care legislation are preparing in their own way. They have twin goals: Keep reminding everyone they’re ready to act whatever the court does, and make sure no one gloats too much over victory.
“No one knows what the court will decide, and none of us would presume to know,” House Speaker John Boehner, R-Ohio, said in a memo last week, “but if the court strikes down all or part of the president’s health care law, there will be no spiking of the ball.”
The Republican playbook includes holding a vote on repealing the entire law if the court doesn’t strike it down in its entirety. This would be message-sending, rather than serious legislation, as a repeal couldn’t possibly pass the Democratic-controlled Senate.
“If the Supreme Court doesn’t see fit to rule it unconstitutional, House Republicans will move to repeal it lock, stock and barrel,” declared Rep. Jeb Hensarling, R-Texas, the chair of the House Republican Conference.
Lawmakers are scheduled to leave as early as Thursday evening for a Fourth of July recess that’s scheduled to end July 9. After disposing of any symbolic House vote, lawmakers would need time to address more realistic measures in response to a complicated court ruling.
“We have things ready to go,” said Sen. Tom Harkin, D-Iowa, the chair of the Senate Health, Education, Labor and Pensions Committee. “We have different drafts for different contingencies.”
The White House, too, has its contingency plans, though officials concede that even the president will find out the Supreme Court news just like everyone else.
“Well,” White House spokesman Jay Carney said Wednesday, “we turn on televisions and radios and computers, and watch SCOTUSblog.”