U.S. Supreme Court
SCOTUS Notebook: A Minute-by-Minute Account from Inside the Courtroom on the Big Day
Posted Jun 28, 2012 12:50 PM CST
By Mark Walsh
Outside the U.S. Supreme Court building this morning, some of the circus atmosphere returned from the days in March when the Affordable Care Act cases were argued.
9:35 a.m. Inside the courtroom, as observers arrive and seats are filling with the lucky members of the public, the press, and the Supreme Court bar. There is nervous anticipation. Sen. Orrin Hatch, R-Utah, arrives and greets Rep. Michele Bachmann, R-Minn., at the front of the general public seating.
9:44 a.m. Court officers "shush" the crowd. But the din returns within a few minutes, and the officers shush again.
9:51 a.m. Retired Justice John Paul Stevens enters the courtroom from the columns to the right of the bench, and he takes a seat in the court's VIP section, a couple of benches that face across the bar section of the court (the counterpart to the press section on the other side).
U.S. Solicitor General Donald B. Verrilli Jr. and top members of his office file into the courtroom shortly after Stevens. They spread out to fill the seats and both counsel tables. It is not clear from the press section whether Verrilli's water pitcher is full, but he won't be doing any speaking at the lectern today. Verrilli’s initial throat-clearing at the oral arguments led many to criticize his performance.
Two tables normally in the bar section during oral arguments have been removed during opinion seasons, allowing for more chairs. Still, while the bar section is much fuller today than it has been the last few opinion days, the last row of the section will remain largely empty today.
9:55 a.m. The regular routine kicks in. A court officer delivers the same short security announcement given every day the court is in session, about staying in your seat, where to exit in an emergency, etc. Still, a few members of the press section stand up now and then to try and see whether any more VIPs have entered. For all the drama, the courtroom is a bit short on star power.
10 a.m. The justices emerge from behind the curtains and take their seats. Justice Antonin Scalia looks a bit grim. So does Justice Elena Kagan, though, so that doesn't reveal much. The other justices are poker-faced.
Chief Justice John G. Roberts Jr. moves quickly to say that Justice Anthony M. Kennedy will announce the court's disposition in United States v. Alvarez.
Kennedy explains that he is announcing the judgment of the court, meaning his opinion does not carry a majority of the court. The judgment, in the end, is 7-2 to invalidate the Stolen Valor Act, which made it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. It is not the last time Kennedy will speak today.
As SCOTUSBlog points out earlier in the morning, Alvarez and the other case besides health care today, First American Financial Corp. v. Edwards, make a pretty good undercard to the main event.
Next up is First American, which has been pending since oral arguments in late November and deals with the Real Estate Settlement Procedures Act. Most observers are expecting a decision from Justice Clarence Thomas, the only member of the court who hasn't written a majority opinion from that month's oral argument session (the justices try to share the load to a degree).
But Chief Justice Roberts has a surprise, and not the first one he will deliver today. First American is being dismissed as improvidently granted, the chief says, meaning the justices have decided they shouldn't have taken up the case after all. Sometimes cases are DIG'd, as it were, right after oral argument. There obviously was something else going on with this case over these several months, but the justices have concluded they will not decide the case after all.
The chief might have waited until all other opinions for the day were announced—including the health care decision—to issue the DIG. But instead, he got that out of the way first.
10:07 a.m. Roberts says: "I have the opinion to announce in Number 11-393, National Federation of Independent Business [v.] Sebelius, and related cases." If audience members could possibly perk up any more in their seats, they did.
It is at this moment that copies of the full opinion are handed out downstairs in the court's press room, and reporters and anyone else who could access it were free to try to discern the court's ruling.
Inside the courtroom, however, the full revelation of the court's ruling will take quite a few minutes to unfold.
The chief justice begins by addressing whether Congress had authority under the commerce clause to pass the individual mandate in the Affordable Care Act.
"Nothing in the text of the Constitution suggests it can," Roberts says. After going on for several minutes along this line, he added, "the commerce clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions."
A majority of the court agreed with this proposition, Roberts says. But he is not finished. He moves on to the "tax power" argument, one that got relatively little attention during the extensive oral arguments.
"Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can," the chief justice says. "Upholding the individual mandate under the taxing clause thus does not recognize any new federal power."
It slowly dawns on spectators that the individual mandate is being upheld. It won't be clear for a few minutes that Roberts is the only conservative to have joined the court's liberal bloc for this conclusion.
Sen. Hatch, in the front row of the general section, now looks stone-faced as he jots down some of what Roberts is saying.
Roberts moves on to the question of the Medicaid expansion, which he paints as a "gun to the head" of the states and a "shift in kind, not in degree."
He surprises the courtroom again by saying that seven members of the court agree on this.
10:25 a.m. Roberts sums up the court's judgments. He reminds people that under Marbury v. Madison it is the court's responsibility to say what the law is. He then quotes himself not from the end of his written opinion (PDF), but from Page 6: "It is not our job to protect the people from the consequences of their political choices."
Only now is it clear that the court has ruled 5 to 4 to uphold the individual mandate under the taxing power.
Justice Kennedy explains that he has written a joint dissent with Scalia, Thomas, and Samuel A. Alito Jr. (Which means, it turns out, it is signed by all four as authors.)
"In our view, the act is unconstitutional in its entirety," says Kennedy, the justice that Time magazine recently predicted would be "the decider" on the health care case.
"We cannot accept the government's theory," Kennedy continues. "There are structural limits upon Congress' powers. In other words, there are some things the federal government cannot do."
He continues at some length about how the court majority is engaging in "judicial tax-writing," and how, "in short, the court imposes a tax when Congress deliberately rejected" classifying the individual mandate as a tax.
He explains why the dissenters disagree with the remedy the chief justice adopted for the Medicaid expansion, and then why—if the individual mandate and Medicaid expansion are unconstitutional, as the dissenters agree—that makes the entire act "inoperative."
The majority's actions amount "to a vast judicial overreaching," Kennedy says. "It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect."
After about 13 minutes, he is done, and it is time for Justice Ruth Bader Ginsburg, who is in the majority on the tax power issue, to deliver some dissenting remarks.
The tax power rationale should only be "an auxiliary holding," Ginsburg says, while "Congress' vast authority to regulate interstate commerce solidly undergirds the Affordable Health Care legislation."
"The court's majority would compare health insurance to broccoli," she says, in reference to the anti-commerce clause rationale majority. "But health care is not like vegetables or other items one is at liberty to buy or not to buy. All of us will need health care, some sooner, some later, but we can't tell when, where, or how dire our need will be."
As Ginsburg reads on, including her views on the Medicaid issue, for nearly 20 minutes, the audience begins to fidget. People outside the courtroom are digging into the opinions.
10:45 a.m. National Public Radio Supreme Court Correspondent Nina Totenberg slips away from her seat in the front row of the press section.
Ginsburg wraps up with a version of what will be the headline of the day.
"So, in the end, the Affordable Health Care Act survives largely unscathed," she says. "But the court's commerce and spending clause jurisprudence has been set awry. My expectation is that the setbacks will be temporary blips, not permanent obstructions."
The court is finished. The chief justice delivers his customary thank-you to the Supreme Court staff. This is the time when any retirements of more senior court staff members are announced, but there weren't any this year. However, Roberts notes that William K. Suter, the clerk of the Supreme Court, will reach his 50th anniversary of government service in September. Suter is a former judge advocate general for the U.S. Army who keeps the clerk's office running with military precision.
This leads to an unusual conclusion to the day's events. Roberts quickly says the court will return on the first Monday in October, and that he expects Suter to be there at the "same time, same place." The audience begins to applaud, apparently for Suter, not for the outcome in the opinions they have just heard. Applause is frowned upon during court sessions, but no one seems too concerned.
11 a.m. The courtroom empties, and for many it is time to go pick up a copies of the opinions.