You may have heard by now that the Supreme Court's case on same-sex marriage is settled. Marriage won. We know this because of the inflection Justice Ruth Bader Ginsburg used—or, at least, the inflection someone thought they heard her use—while saying the word "Constitution."
We also know the Affordable Care Act is doomed. How do we know? Well, Justice Anthony Kennedy said that, in the court's eyes, the U.S. has "three fully functioning branches of the government." What else could that possibly mean?
It's one of Washington's most reliable late spring/early summer traditions: Once it's time to start complaining about the humidity, it's also time to start tearing apart every shred of information that comes out of the Supreme Court, including the justices' most innocuous statements, in search of clues about the court's most important rulings.
For roughly six weeks before the last rulings are handed down, there's not much else to do. And no potential clue is too small.
"It's something of a silly season. We're waiting for big cases to come out and there's nothing we can do about it," said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, a liberal legal advocacy group.
The 2015 installment of the annual Supreme Court Waiting Game is just getting started, but it's shaping up to be a doozy.
Big cases heighten the anxiety, and this term contains both of the biggest blockbuster issues of the past several years—Obamacare and same-sex marriage, which could be decided within 24 hours of each other—on top of big, important rulings on free speech, religious liberty, voting rights, environmental regulations, and the death penalty.
There are 28 cases left for the court to decide. We know what they are. But everything else—what the court will decide, when a particular ruling will come out, who will write it—is just guesswork, with wildly varying degrees of solid support.
"Some of the tea-leaf reading is more based in reality, and some is based more on hope," Wydra said.
On the reality-based front, legal experts have a rough sense of timing, and are pretty good at predicting which justice is writing a particular decision—which can provide a strong signal about the outcome. But even those informed guesses aren't perfect.
Cases are usually decided roughly in the order they were heard. There are exceptions, though—a major free-speech case argued in December is still pending, even though the rest of that month's cases have been decided. No one knows why, or when it will come.
Another rule of thumb: Each justice usually writes one opinion for each month of arguments, and it's very rare for one justice to write more than two decisions per month.
That information can be valuable. It's how legal experts predicted, accurately, that Justice Samuel Alito was writing the Hobby Lobby ruling on Obamacare's contraception mandate, and thus that the administration was likely to lose. Likewise, Chief Justice John Roberts is probably writing that free-speech case from December.
"That, I think, does have some value," Wydra said. "(But) some of it ... is just trying to keep ourselves busy while we fret about the outcomes in big cases."
The fuss over Ginsburg's comments while officiating a same-sex marriage last weekend are very much the latter.
"With a sly look and special emphasis on the word 'Constitution,' Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States," New York Times columnist Maureen Dowd reported.
What did it mean?!? Was she hinting that the Supreme Court has already decided the Constitution guarantees a right for all couples to marry? Or maybe it was just an indication that Ginsburg personally believes there's a constitutional right to marry, which would not really be much of a surprise? Or, what if it meant nothing special, since the "Constitution" line is part of her standard script for weddings?
All plausible explanations, and only Ginsburg knows the answer. But that didn't stop the speculation. Conservative legal advocate Ed Whelan cited the episode as an example of Ginsburg talking too openly about active cases, writing that she should recuse herself from the marriage issue and that if she doesn't, "no one should be expected to regard [the decision] as legitimate."
Ginsburg almost certainly does not hold the deciding vote on same-sex marriage, and almost certainly won't be writing that decision—that task will probably fall to Justice Anthony Kennedy, who touched off his own interpretive firestorm back in March.
Kennedy also might be writing the court's Obamacare decision—we won't have a good sense for another few weeks whether it's him or Roberts—and some Obamacare supporters were distraught by remarks Kennedy made to a House committee. As Bloomberg News reported, Kennedy was asked about his concerns, expressed previously, that too many hot-button political fights are settled in the courts.
"We routinely decide cases involving federal statutes, and we say, `Well, if this is wrong, the Congress will fix it.' But then we hear that Congress can't pass a bill one way or another, that there is gridlock. Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government," he said.
Some Obamacare allies were apoplectic. They've argued that if the court invalidates the Affordable Care Act's insurance subsidies in most of the country, Congress won't be able to fix the ensuing mess. So, they feared, if Kennedy sees Congress as a "fully functioning branch of government," it's a bad sign for Obamacare's subsidies.
Even one of the lawyers who helped conceive of the Obamacare challenge said he didn't hear anything new in Kennedy's statement. And anything that seems like a subtle sign should be taken with a grain of salt, Wydra added.
"They know that we're going to be looking for hints, so I don't take that too seriously," she said.
The Supreme Court Waiting Game reached its peak in the early summer of 2012, as the country anticipated the court's Obamacare decision. Trying to read the tea leaves led a lot of people astray—but it's not clear that anyone has learned from that experience.
Ginsburg, in retrospect, provided the only actual hint about the court's deliberations. During a speech in June 2012, she said the term had been "more than usually taxing"—phrasing no one thought twice about until, a few weeks later, the court upheld Obamacare's individual mandate as a tax.
The "hints" people did see at the time were mostly wrong. One conservative pundit thought Ginsburg might have indicated in the same speech that she was on the losing side of the Obamacare case, because she mentioned the value of dissenting opinions when asked about one of her dissenting opinions.
Others misconstrued more traditional clues. National Review writer Wesley Smith summarized a theory that, because Roberts probably was writing the majority opinion, and because Justice Antonin Scalia hadn't read a dissent from the bench at that point in the term, Roberts and Scalia must be on the same side and Obamacare would lose. Maybe.
"The wait is driving us crazy! Supreme Court, put us out of our misery!" he wrote.
This article is from the archive of our partner National Journal.
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