10 Things to Bear in Mind During the Health Care Arguments

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As the hearings begin, keep your eyes on the justices, play drinking games -- and be prepared for anything.

Reuters

Welcome to America, the land of the free and the home of the brave, on the eve of the big Supreme Court arguments over the Affordable Care Act, where you cannot swing a reply brief without hitting a lawyer or a lobbyist or a medical "expert" willing (for some free publicity) to share with you his or her ponderous view of how it's all going to come out. I have received hundreds upon hundreds of emails pitching such knowledge and prescience-- and one of the best parts about the looming end of this case will be the end of these emails.

The truth is, dear reader, that the people who know how the case is going to turn out aren't talking. And the people who are talking about how the case is going to turn out don't really know. Since the justices alone are in the first group I happily acknowledge that I am squarely in the second group. After Bush v. Gore, after Citizens United a decade later, I have learned on this beat never to be too sure about anything. Instead, all I offer here are a few tips that I believe will help reasonably guide you through the three momentous days ahead. 

Be prepared. If you have somehow managed to avoid the ceaseless legal and political chatter over the Affordable Care Act, both before and after it's enactment almost exactly two years ago today, then congratulations! If you want to get caught up, however, start here, at the official website of the United States Supreme Court, for basic legal briefs and other material. From there, go to Scotusblog's indispensable coverage of the cases, the lawyers, and the issues. Then read this memorably candid piece by Dahlia Lithwick.  

Be prepared for disappointment. The justices will have plenty of many different ways to resolve these cases without giving a complete victory to either side in the fight. For example, the Court could declare that the Care Act contemplates a "tax" and not a "penalty"-- even though it doesn't say so-- and that would mean that the challenges are premature. Can you imagine the political furor if that's the result here? I can. It would mean a whole new generation of lawsuits in two years-- if the statute itself isn't amended or repealed first.

Action/inaction. Opponents of the health care law say that Congress may not constitutionally regulate "inaction"-- the voluntary choice not to buy health insurance. In response, the Obama Administration and other Care Act supporters say there is no such thing as "inaction."  Notably, 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush and a former law clerk to Justice Antonin Scalia, wrote last year that "inaction is action." If the Court agrees with that formulation, the law likely will survive.

Drinking games! If, like hundreds of millions of your fellow citizens, you cannot see the arguments live, then consider having an "audio release" party. Invite your friends over to listen to the justices and lawyers cogitate. And you can play drinking games. For example, everyone can take a shot if someone in court mentions the phrase "broccoli mandate" to connote overreaching federal power. Or, if you are a heavier drinker, you can just take a shot every time someone mentions Wickard v. Filburn, the 1942 case so vital to both sides.

The mind of Justice Clarence Thomas. He hasn't asked a question at oral argument in more than six years. Starting on Monday, he'll likely sit in court in total silence for six hours over three days on a subject, the Affordable Care Act, which we know is so near and dear to his wife Ginny's heart. What will he be thinking during those long public hours? What good questions will be raised in his mind that he won't ask aloud? And what will the Thomases' dinner table conversation be like early next week? Maybe that's where we need the cameras!

The words of Justice Elena Kagan
. Speaking of justices whose participation in these health care cases has been marked by political controversy, there is the former Solicitor General of the United States. In her brief tenure on the Court, less than two full Terms, she already has distinguished herself for her writing and her cogent questions during argument. Unlike Justice Thomas, she likely will speak in court. What does she think of the Commerce Clause and the aforementioned "broccoli mandate"? Watch this from her 2010 confirmation hearing.

Everything old is new again. Opponents of the Affordable Care Act say it represents an "unprecedented" expansion of federal power. Supporters of the law say the political and legal assault upon the measure is "unprecedented." Baloney. Folks, we've been here before. If you want some context and perspective on the arguments, read Jeff Shesol's masterful "Supreme Power," about the Court and Franklin Roosevelt. If you really want to go old-school, and make your grandparents proud,. read the classic The 168 Days by Joe Alsop and Turner Catledge.  
   
Watch Breyer. Justices often delight in torturing at oral argument even those attorneys whose positions they ultimately endorse. So all eyes his coming week will be on Chief Justice John Roberts and Justice Anthony Kennedy. But it might also make sense to keep an eye on Justice Stephen Breyer to see where his eyes are. Justice Breyer frequently asks questions of the lawyers while looking directly at one of his colleagues on the bench as if to say: "Lawyer, please answer my question so I can convince my fellow justice of a particular point."

Ahead? A full season of waiting. By my calculations, we'll have to wait three full months before we will likely get some answers to the questions raised by the oral arguments. I reckon it's 93 days from Wednesday, March 28 at noon, when the oral arguments finally end, to Thursday, June 28th at 10 a.m., when the Court is expected to release its final opinions of the current Term. Of course, the justices could issue their ruling sooner-- a few days earlier, perhaps-- but don't bet on it.

Behave in court. Because the great public interest in the issues surrounding the new law, the courtroom will be packed-- and there are likely to be plenty of first-time viewers of a High Court oral argument. Here are some helpful rules: 1) don't start the "Wave" after an attorney finishes an argument; 2) don't try to sneak in a flask of whiskey to brace yourself for the tedium of the Anti-Injunction Act; 3) don't fist-pump when a justice asks a good question or when an attorney offers a good answer, and; 4) whatever you do, don't do this.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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