March 13, 2012

What to look for in the Obamacare arguments

By What to look for in the Obamacare arguments

In two weeks, the Supreme Court will begin the historic oral arguments in the cases challenging the Patient Protection and Affordable Care Act, or PPACA, better known as Obamacare. They’re historic because apparently the Court hasn’t heard three days of oral arguments on the same case in at least a century. And the cases involve some of the most important issues in constitutional law. Over the next few days, we’ll look at these and other subjects in preparation for the arguments on March 26, 27, and 28. First a little background.

The Supreme Court doesn’t allow cameras (in fact, only one or two photographs have ever been taken of the Court in session), but they do release the audio recordings of oral arguments, and in important cases, they often release the recordings as soon as the hearing is over. Usually oral arguments last an hour, but the justices have asked for extended arguments, and they’ve divided the case up by subject, so that the arguments will go as follows:

  • March 26, an hour and a half on the Anti-Injunction Act jurisdiction issue
  • March 27, two hours on the Individual Mandate
  • March 28, one hour on the Medicaid/Spending Clause issue, and an hour and a half on the Severability issue.

I’ll explain what these issues mean later. Note that there is really only one case here, Florida v. Department of Health and Human Services, which the Eleventh Circuit decided last summer. But the individual plaintiffs, the state plaintiffs, and the federal defendants all asked the Supreme Court to review that decision (filing separate petitions for certiorari) and the Court granted all three, then divided the case by issue. So although I refer to “cases,” there’s really only one case before the Court, separated into four oral arguments.

Supreme Court oral arguments are exciting to observe, but they’re also very hard to attend if it’s a big case like this. The courtroom doesn’t hold many people, and often people start lining up hours before a case is going to be argued. The hearings typically begin at 10 in the morning, as the justices appear from behind the red curtain and take their seats at the long bench in the marble courtroom. The lawyers arguing the case stand behind a wooden podium that’s quite close to the justices, and begin with the traditional phrase, “May it please the Court…” before beginning their arguments. Very often, a lawyer will get only a sentence or two out before being interrupted with a question. And in recent years, the justices have asked many, many questions—so that lawyers often have a hard time answering one before being interrupted with another. But each justice has his or her own style. Justice Clarence Thomas is famously quiet, having asked no questions in several years.

The Obama Administration will likely be represented by Solicitor General Donald Verrilli Jr. The state of Florida and the individual plaintiffs will be represented by former Solicitor General Paul Clement, and possibly by Florida Attorney General Pam Bondi. The Court has also appointed lawyers H. Bartow Farr and Robert A. Long to argue certain issues. [Update 3/15/12: Here is the final list of who will present the arguments.]

Often the justices’ questions are aimed at each other—with justices asking pointed questions not so much to get answers from the lawyers, but to point out things to their colleagues on the bench. The lawyer’s difficult job is to stay on-message, and struggle to get out the points he or she thinks relevant, while the justices are continually interrupting with questions. It’s like giving the Gettysburg Address while bull riding. Ideally, the argument is more like a conversation, but there are times when it can be a frustrating exercise for all involved.

When an argument is over, the Chief Justice will say “The case is submitted,” and the lawyers quickly exit the courtroom, usually walking down the front steps to speak to assembled reporters.

The justices then meet at the end of the week to discuss cases. They don’t really argue over their decisions—they aren’t a jury, after all; each one is a judge, and each is entitled to issue his or her own opinion. But they take a straw poll to find out who thinks what, and then the job of writing opinions is assigned. The senior justice in the majority either writes it himself or assigns it to someone; the senior justice among the dissenters does likewise; the Chief Justice being counted as the most senior. The decision isn’t final at this point: the justices draft opinions and then circulate them to each others’ offices. They can ask for certain changes to be made to the drafts, or can even switch their votes. Sometimes what begins as a majority opinion can be transformed into a dissenting opinion if someone changes his or her mind. And, of course, any justice can write a solo opinion.

When everyone’s either satisfied with the opinion he or she is joining, or has finished a separate concurring or dissenting opinion, the decision is announced. This happens at the beginning of a Court session—in this case, probably in late June—and a short version of the opinion is read from the bench. Sometimes a dissent is also read from the bench, if the dissenting justice feels strongly about an issue. That’s when the decision becomes official.

For more on how the Supreme Court operates, I recommend the fantastic book, The Brethren by Bob Woodward and Scott Armstrong. Although out of date (it was written in the 1970s) it presents a clearly written and dramatic look at how the Court works. Also good is Supreme Conflict by Jan Crawford Greenburg.

In our next post, we’ll look at the issues that the justices will decide in this historic case.

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