Friday, March 30, 2012

Deep Inside the Supreme Court: How the Vote on Obamacare Will Take Place

Via AP:

While the rest of us have to wait until June, the justices of the Supreme Court will know the likely outcome of the historic health care case by the time they go home this weekend.

After months of anticipation, thousands of pages of briefs and more than six hours of arguments, the justices are to vote on the fate of President Barack Obama's health care overhaul in under an hour Friday. They meet in a wood-paneled conference room on the court's main floor. No one else will be present.

In the weeks after this meeting, individual votes can change. Even who wins can change, as the justices read each other's draft opinions and dissents.

But Friday's vote, which each justice probably will record and many will keep for posterity, will be followed soon after by the assignment of a single justice to write a majority opinion, or in a case this complex, perhaps two or more justices to tackle different issues. That's where the hard work begins, with the clock ticking toward the end of the court's work in early summer.

The late William Rehnquist, who was chief justice for nearly 19 years, has written that the court's conference "is not a bull session in which off-the-cuff reactions are traded." Instead, he said, votes are cast, one by one in order of seniority.

The Friday conference also is not a debate, says Brian Fitzpatrick, a Vanderbilt University law professor who worked for Justice Antonin Scalia 10 years ago. There will be plenty of time for the back-and-forth in dueling opinions that could follow.

"There's not a whole lot of give and take at the conference. They say, 'This is how I'm going to vote' and give a few sentences," Fitzpatrick said.

It will be the first time the justices gather as a group to discuss the case. Even they do not always know what the others are thinking when they enter the conference room adjacent to Chief Justice John Roberts' office.

Table Talking

By custom, they shake hands. Then Roberts will take his seat at the head of a rectangular table. Scalia, the longest serving among them, will be at the other end. The seven other justices also sit according to seniority, the four most junior on one side across from the three others.

"They generally find out how the votes line up at the conference," said Orin Kerr, a George Washington University law professor who worked for Justice Anthony Kennedy nine years ago.

The uncertainty may be especially pronounced in this case, where the views of Roberts and Kennedy are likely to decide the outcome, Kerr said in an interview Thursday. "I don't think anyone knows. I'm not sure Justice Kennedy knows."

No one's vote counts more than the others', but because they speak in order of seniority, it will become clear fairly quickly what will become of the health care overhaul.

That's because Roberts speaks first, followed by Scalia, then Kennedy. If the three men hold a common negative view, the Obama health care overhaul probably is history. If they don't, it probably survives.

If Roberts is in the majority, he will assign the main opinion, and in a case of this importance, he may well write it himself, several former law clerks said. If Roberts is a dissenter, the senior justice in the majority assigns the opinion.

Read the rest here.


  1. It sounds like the whole process is a joke. When you vote in a sequential manner, the votes of the less senior people are influenced by what was just cast. There's no way around it. What's more, they even admitted they didn't read the legislation in question. They're just listening the arguments and reading a few briefs submitted to the court. The fate of hundreds of millions of people are decided behind closed doors by people who weren't elected, who can't be held accountable for their decision. Some democracy! What a joke.

    1. First off we do not live in a democracy, this is a constitutional republic. Second, they can be held responsible. Justices can be impeached by congress and the size and scope of the court is determine by congress (see article III section 1).
      And we do not want Justices beholden to political forces, therefore they are appointed and not elected.

  2. A court of law is no democracy, it lays its foundation on the doctrines of jurisprudence.

    The way SCOTUS agrees on a decision is however contrary to the way it works in many other nations. It is quite common for the junior members of the court to speak first, not to be intimidated by opinions rendered by the more senior members of court.