Analysis: In secret, justices to decide fate of health care overhaul

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Story highlights

  • Justices believed to have voted Friday; now hard work of crafting opinions begins
  • Many legal observers think votes of Roberts, Kennedy are in play
  • Not even justices know how this saga will end

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.

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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.

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    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. It is the key funding mechanism -- the "affordable" aspect of the Patient Protection and Affordable Care Act -- that makes most of the other 450 provisions so possible.

    This provision requires 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 "inactivity"?

    A coalition of 26 states led by Florida say 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.

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    As with multiple cases, 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; how broad or narrow a ruling can we expect; whether a broad statement be made 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.

    'It's so close'

    The key players could be two conservatives: Chief Justice John Roberts and Justice Anthony Kennedy, long labeled a "swing" vote.

    "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 trying for consensus on divided issues, saying it brings long-term credibility and public confidence to the court's work. It's been mostly a pipe dream, as his nearly seven years of leadership has shown a continuing 5-4 split on most hot-button issues. If the White House and congressional Democrats do get his vote, it may simply be because he does not think the Third Branch should be overturning such an important economic law.

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    Kennedy too seemed to be struggling mightily, tough on both sides at argument, but perhaps tougher on the government.

    "When you are changing the relation of the individual to the government in this" mandate, he told the solicitor general at one point, "what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?"

    That internal ideological struggle could ripple to the chambers of his eight colleagues. To get his vote -- if that vote is in play -- how far will the majority go to accommodate and assimilate his views.

    "No matter what side wins this case, it's going to win barely. It's so close," said Goldstein. "If the individual mandate is upheld it's almost certain to be an opinion by five, maybe six justices saying Congress can go this far, but no further [saying]: We're never going to allow Congress to do things like order people to buy broccoli or buy cars."

    The justice's initial votes this week are not cast in stone. They can and do change their minds. Kennedy in 1992 initially voted with conservatives to overturn the Roe v. Wade decision legalizing abortion. But after several weeks in internal discussions with colleagues he changed his mind, reaffirming most of the Roe precedent.

    How will it end? Who knows

    Health care will soon enter the history books, among the handful of the high court's greatest cases, the stakes no doubt monumental -- legally, politically, socially. An issue that affects every American will naturally attract that kind of attention.

    So the court must quickly get itself organized, identify the different majorities, then write and circulate what are expected to be multiple dissents and concurrences. Add to that the other three dozen or so other cases they must also finish, and the makings of three-month sprint to an uncertain finish has the makings of a courtroom thriller. Just don't expect any sneak peeks or coming attraction previews. Even the nine justices do not yet know how this will end.