Now that the Supreme Court has heard more than six hours of arguments in the Affordable Care Act challenge, in many ways the work of the justices has just begun.
Today they will meet behind closed doors in their ornate conference room and discuss the heart of the case, the individual mandate that requires most every American to buy health insurance. If tradition holds, the conversation will begin with Chief Justice John Roberts, and then the other justices will speak in order of seniority. A vote will be recorded. No one, not a clerk, administrative assistant or staff member is allowed in the room. If there is a knock at the door–with someone bringing a law book or a glass of water — Elena Kagan, as the junior most member of the court, will have to see who is there.
If Roberts is in the majority, he has the power to assign the opinion in the case or keep it for himself. If he is in dissent, the justice with the most seniority in the majority will assign the opinion.
In this complicated case, which included four separate arguments on different aspects of the health care law, more than one justice may be assigned to the task of dealing with all the issues.
After they assign the opinion, drafts begin circulating among the justices. But sometimes a justice shifts his or her position. As Linda Greenhouse explained in her book “Becoming Justice Blackmun” in 1992 Justice Harry Blackmun–the author of Roe v Wade– despaired that Roe would be overturned in a case called Planned Parenthood v Casey. Blackmun was drafting a dissent when Justice Anthony Kennedy shifted his position and provided the 5-4 vote to maintain a constitutional right to abortion.
Some justices have their clerks take a crack at the first draft of the opinion, others write it themselves. But the clerks–most justices have four–are sworn to secrecy. Leaks coming from the Supreme Court are almost unprecedented.
This is the crunch time for the court. The justices still have one more session of arguments to hear including an extremely significant immigration case. Most believe the health care case will be released during the last week of the term in the final week in June.