WASHINGTON: 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 will vote on the fate of President Barack Obamaís health-care overhaul in under an hour today. They will meet in a wood-paneled conference room on the courtís 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 otherís draft opinions and dissents.
But Fridayís 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. Thatís where the hard work begins, with the clock ticking toward the end of the courtís work in early summer.
The late William Rehnquist, who was chief justice for nearly 19 years, has written that the courtís conference ďis not a bull session in which off-the-cuff reactions are traded.Ē Instead, he said, votes are cast, one by one in order of seniority.
Todayís conference also is not a debate, said Brian Fitzpatrick, a Vanderbilt University law professor who worked for Justice Antonin Scalia 10 years ago.
ďThereís not a whole lot of give and take at the conference. They say, ĎThis is how Iím going to voteí and give a few sentences,Ē Fitzpatrick said.
It will be the first time the justices gather as a group to discuss the case. Even they do not always know in advance what the others are thinking when they enter the conference room adjacent to Chief Justice John Robertsí office.
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 other seven justices also sit according to seniority, the four most junior on one side across from the other three.
ďThey generally find out how the votes line up at the conference,Ē 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 Thursday. ďI donít think anyone knows. Iím not sure Justice Kennedy knows.Ē
No oneís vote counts more than the othersí, but because they speak in order of seniority, it will become clear fairly quickly what will become of the health-care overhaul.
Thatís because Roberts speaks first, followed by Scalia, then Kennedy. If the three men hold a common view, the Obama health-care overhaul probably is history. If they donít, it probably survives.
Writing the opinion
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.
The court wonít issue its ruling in a case until drafts of majority opinions and any dissents have circulated among the justices, changes have been suggested and either accepted or rejected.
ďThese justices arenít locked in. Minds have changed during the drafting process and minds have changed after opinions have been circulated,Ē said Rick Garnett, associate dean and professor of law at Notre Dame Law School who worked for Rehnquist 15 years ago.
In one celebrated case decided in 1992, Rehnquist initially assigned Kennedy to write a majority opinion for five justices allowing prayers at public school graduations. In the end, Kennedy ended up writing the opinion for a different five-justice majority striking down the graduation prayers.
No one will know precisely when decisions on particular cases will be coming, until perhaps Roberts ends a court session in late June by announcing the next meeting will be the last until October. Then itís a safe bet that whatever hasnít been decided will be on the last day. And decisions in the biggest cases very often arenít announced until that last day of the term.