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Bated breath

Supreme Court | Former Supreme Court clerks predict justices will uphold healthcare law

Issue: "Who will vote?," April 21, 2012

WASHINGTON-After three electric days of arguments over the healthcare law at the Supreme Court, most observers sensed the justices' hostility to the law. Justice Anthony Kennedy, likely one of the swing votes on this case along with Chief Justice John Roberts, said at one point that the law's individual mandate to buy health insurance "changes the relationship of the federal government to the individual in a very fundamental way." He insisted government lawyers clear a high bar to justify the mandate, the centerpiece of the healthcare law.

But oral arguments don't always measure the justices' temperature. Former clerks for the current Supreme Court justices-those with the closest knowledge of the nine-predicted that the court would uphold the law. The right-leaning American Action Forum and the left-leaning Blue Dog Research Forum interviewed 43 former clerks to the current justices as well as 23 attorneys who had argued cases before the court. Only 35 percent of those interviewed thought the court would find the individual mandate unconstitutional. A quarter of the former clerks thought the justices would rule that the case wasn't ripe for ruling, that the court must wait until 2015 for individuals to pay penalties for not having insurance before it could rule on the case. The groups interviewed more clerks for the conservative justices than for the liberal justices, as well as 10 former clerks to Kennedy.

The interviews took place before the Supreme Court arguments, so perhaps the clerks' opinions would be different now. But the findings made more bold the comments of President Barack Obama. At an April 2 press conference he fired what sounded like a warning shot at justices in the midst of deliberations: "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

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Of the conservative justices, Roberts seemed the friendliest to arguments to keep the insurance mandate, but he said it would force some people to pay for things they would never use, like substance abuse treatment. Kennedy, in the discussions over whether the rest of the law could stand without the individual mandate, said it might be "more extreme" for the court to pick and choose parts of the law rather than strike it down altogether.

After the historic three-day hearing, the justices all sat around a conference room table in the Supreme Court on March 30 to cast their initial votes on the law's constitutionality. But the court's opinion probably won't appear until the end of the court's term, in late June. In the intervening months, justices will work on writing their opinions, and they could switch votes back and forth before the final verdict.

If the court does strike the law down in its entirety, summer legislative activity in Washington might not be as quiet as expected. Certain provisions in the law are very popular, like the provision for preexisting conditions. Pressure will likely shift to Congress to make sure popular provisions are preserved. Republicans will likely face pressure to present their own reforms, since they have so loudly called to "repeal and replace" the law.

Those who have known the court for decades still can't imagine the outcome. "I don't make predictions," said Michael Carvin, one of the lawyers who argued before the justices against the law, speaking from the portico of the court after the arguments. Sen. Mike Lee, R-Utah, who attended the arguments and clerked for Justice Samuel Alito, also concurred: "I don't want to describe any justice as predictable."

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.


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