Supreme Court Health Care Decision Deliberated In Secret

By James Vicini

WASHINGTON--U.S. Supreme Court justices on Friday held closed-door deliberations on President Barack Obama's healthcare overhaul law, likely casting preliminary votes on how they will eventually rule on their highest-profile case in years.

In an institution known for keeping its secrets, no leaks are likely before formal opinions have been written and announced from the bench. That is not expected to occur until late June, when the court is set to go on its regular summer recess.

The justices' private conference, a meeting in which they typically discuss and vote on cases heard earlier in the week, came after three days of historic arguments over the healthcare law that ended on Wednesday.

Legal experts said only a handful of people - mainly consisting of the nine justices and their law clerks - know about the outcomes of these conferences, and they do not talk about it. Law clerks are sworn to secrecy.

"Confidentiality is drilled into clerks from day one," said University of Richmond associate law professor Kevin Walsh, a law clerk to Justice Antonin Scalia in the court's 2003-04 term.

"The rules and warnings only heightened the obligation we already felt to maintain confidentiality born out of our respect for the Supreme Court and our desire to protect it," he said.

"And it's not like working for the CIA, where you may take secrets to the grave. The big news of any given term - what the court has decided - all comes out into the open by the end of June," Walsh said.

The Supreme Court's private conferences are held with only the justices attending. The meeting room, located on the second floor, is relatively small, oak-paneled and with a fireplace and a rectangular table. It is just off the chambers of Chief Justice John Roberts.

"WE SHOULD REPORT IT"

In recent decades there have been no leaks of Supreme Court rulings, including the momentous 2000 decision that stopped a Florida vote recount, clearing the way for Republican George W. Bush to become president over Democrat Al Gore.

There have been no leaks in high-stakes financial cases including ones affecting the tobacco industry. Stocks of insurers and other healthcare companies could be roiled by any ruling on the two-year-old healthcare law, Obama's signature domestic policy achievement.

The last time Supreme Court leaks emerged as an issue was under Chief Justice Warren Burger, who left the court in 1986.

Then-ABC TV journalist Tim O'Brien reported in 1986 that the court the next day would strike down a key part of a law to balance the U.S. government's budget. He was right about the outcome, but the ruling did not come down until weeks later.

In 1979 he correctly reported the ruling in a major libel case involving the CBS News television show "60 Minutes."

Burger accused an employee in the printing shop of tipping O'Brien and had the employee transferred. The employee denied disclosing any information about the ruling.

"The court has the right to protect its secrets," said O'Brien, who has left ABC and who acknowledged that leaks of rulings are rare.

"But if the news media learns about it, we should report it," said O'Brien, an attorney who has taught law. "People don't watch us or read us because of our ability to keep the government's secrets."

In 1973 Time magazine correctly predicted the court's historic decision that women have a constitutional right to an abortion. Burger then warned all the law clerks not to speak to or be seen with news reporters.

Copyright 2012 Thomson Reuters. Click for Restrictions.

Comments

[12blindbatkite]

06:32 PM on 05/31/2012

Now we'll find out if they are Americans whom uphold our forefathers designs, or one of these types that made it to the top and could careless about the Constitution, or the Declaration of Independence. We know which side the sitting president is on already, He made it Loud and Clear many times. Now to see if the judges are really "Independents", or uphold the Constitution as they pledged they would upon taking there seats. United States - Workers World Party, Freedom Road Socialist Organization, Progressive Labor Party, U.S. Marxist-Leninist Organization, Revolutionary Communist Party, Workers Party, Party for Socialism and Liberation, Communist Party USA, Socialist Workers Party (Trotskyist) All right here in the USA.Wanting New World Order. And abolish the Freedom of Choice as promised by the one who knew what freedom of choice really meant. That is why they came to the New World to start a New and Free government.with Liberty and Justice for All. To not be taxed without representation. And Forced to buy anything from another self appointed group thinking there way is the only way. That scenario has failed from Rome to Hitler. Both believed they knew best. When in fact the peoples right of choice won in both cases,

[Randall Strain]

10:44 AM on 04/22/2012

I've lived and worked all over the world. America has the most expensive healthcare system in the world, and it's health insurance is also the most expensive with the most limitations in coverage. Folks today are better off putting everything they own in some one elses name before entering a hospital, and forgeting insurance, so the tax payers pays for it. Oh wait, thats what average folks do now isn't it.
rtstrain

[stonemann]

05:06 PM on 04/01/2012

It's no big secret to me where this decision is going, no matter how nuanced pundits try to portray it. In other words, I'll be completely floored, but very happy, if a single conservative justice upholds the mandate, based on content of their arguments, that were nothing more than FOX news talking points, and their asinine ruling that not only are corporations people, but they can contribute unlimited cash amounts with no disclosure. The mandate will be struck down, then we’ll have to listen to Mitch McConnell proclaim justice has prevailed.

[priceofliberty]

02:42 PM on 04/01/2012

It surprises me at how many people that do not know what judicial activism is. Worse is the number of conservatives that seem to think a judicial activist is any one that upholds a law they don't like.

Here is the best definition I've found a judicial activist does one or more of the following:
1) declairs a law unconstitutional when similar laws are constitutional.
2) overturning a long held judical precedent.
3) Ruling against a popular interpretation of the constitution.

The funny thing here is its not the "liberal" justices being activists here. If hcr is unconstitutional all three will have happened.

Judicial Activism isn't always bad. However for it to stand the test of time a precedent needs to be more than a majority. It can't be 5-4. Most of the precedents that we're considered good were unanimous or 7-2.

[LordPolonius]

03:12 PM on 04/01/2012

That's not a bad definition, though I object to the term in general because it is thrown around so much by people on both sides of the aisle it is virtually meaningless. And I appreciate the fact that you acknowledge that activism as you describe it can be a good thing. For instance I am a very strong believer in a woman's right to choose to have an abortion. But I think there were enough flaws in Roe v. Wade's reasoning that it could be characterized as a form of activism.

[priceofliberty]

10:25 AM on 04/02/2012

Roe v. Wade is an example of judicial activism, one that had far reaching changes to interpretations of the constitution far beyond the abortion matter. I think that is why the 5 justices that are pretty much anti-choice are also in favor of allowing the government to spy on their citizens.

Its unfortunately not an example of good judicial activism. I'd say if you are objective (and most people aren't on this case) the jury is still out if is good or bad.

An example of good judicial activism is Brown vs. Board of Education. That was unanimous. It got rid of separate but equal. Bad judicial activism is Dred Scott vs. Sanford. That decision was unfortunately 7-2, and required a change in the constitution to get rid of.

My worry about the current case is that not only are they setting precedents either way, but they are setting a dangerous new one. Remember the argument is the mandate was required to pass the law and if the mandate is unconstitutional the whole law must go because it wouldn't have passed because of senate rules.

Everyone is worried about the commerce clause. When they should be worried that the court will be allowed to declare any law unconstitutional if the court doesn't believe a law would have passed. My worry is that this activist court is going to get worse and we will need a constitutional amendment to stop them.

[dbergm1194k]

03:05 AM on 04/02/2012

Judicial activism shouldn't be tolerated - period. (not when it comes to the constitutionality of a law anyway - so long as the bill went through the normal democratic process that every bill must go through before it becomes a law)

The Constitution vests the power to block a bill to only one branch of government - the executive branch. In a simple term, the power of "veto" is exclusive to the President of the United States, and does not reside with any other branch - especially not the judicial branch.

The Judiciary does not represent the people, it represents the government's powers of enforcing laws that were enacted by the legislature; which is made up of representatives elected by the people. If a law passes by majority vote of the people's representatives, then the law is constitutional. The only time it cannot be constitutional is if the law exercises powers of which it does not have. The commerce clause is just a different way of saying that the Federal Government has the authority to lay and collect taxes.

The mandate doesn't deny the people of life, liberty or property. It does not make it unlawful not to have insurance; it imposes a tax burden on those who do not carry insurance, which is justified based on the fact that everyone else with insurance will essentially have to cover the cost of healthcare for the uninsured. That is the logical outcome from unpaid medical bills - higher costs for healthcare.

[wannabefree]

10:35 AM on 04/01/2012

As an independent, if I look at this SC decision on Bush, Gore , it was was biased. Then came the Citizens United, which gave life to Corporation as people, to provide unlimited campaigned funding. Another biased decision towards party affiliation. So we helpless people were bitten twice. We have lost the trust. This HC decision will go down in the same sewer lines as before with this Tea Party sympathizing SC.

[Teresa Poland]

09:01 AM on 04/01/2012

If the Supreme Court strikes down the ACA ,it proves the justices might be biased against the Democrats.The court did elect Bush over Gore in 2000,which was a highly unpopular vote. They also voted to allow a lot more money to be contributed to those running for office. That allows the rich Republicans to influence elections with immense wealth and allowed then to do it in secret thus destroying our political process. Now it looks like the only people that will have health insurance are their healthy,wealthy friends. This has proved that they have too much power over the other 2 branches of government. The justices should be allowed to serve for only a set number of years and should have to face the voters they so greatly affect.

[Hope4us2change]

02:43 AM on 04/01/2012

Now we are down to 9 people to decide such a huge issue that will effect every American for years and years. Obamacare and its government intrusion and mandates to buy it is clearly not a good idea--just the opposite--it would be disastrous for us. I only hope these Supreme Court judges think clearly before they impose such a horrific law upon us that will take away our rights to choose. Yes, we need health care reform, a better plan--but not this, certainly not this! Let the new president coming and the new lawmakers elected in November counsel together and find a better way for us on this issue. Our country has been through enough the past three years, we don't need Obamacare--not now--not ever!

[Marzz]

10:51 PM on 04/02/2012

I honestly can't decide how I feel about the "individual mandate" provision of Obamacare. Part of me thinks it makes sense, but I also don't like the idea that people are forced to buy health insurance. Why do you think it is a bad idea? And why else do you think Obamacare is bad?

[firstad]

12:07 AM on 04/01/2012

wolfrus - it doesn't matter if 100 percent of the people believe politics plays a part in the choices the Supreme Court makes, because our personal opinions do not count. They do what they want once they are appointed. One other thing: there is no such thing as purity in the US government.

[hgoodguy]

07:43 PM on 03/31/2012

The single greatest achievement of the "conservative" movement in this country has been to convince millions of week minded individuals that selfishness, greed, and hate for those who are less fortunate, are good Christian values.
This evidenced by their total indifference to anything that takes a few dollars out of their greedy and self rightous pockets!
If Jesus ever did come back, these people would crucify him all over again.

[pjburke]

10:44 AM on 04/01/2012

"If Jesus ever did come back, these people would crucify him all over again."

They would water.board him first... if only to find out how to turn water into wine.

[EL CLAVO]

08:13 PM on 04/16/2012

wow no wonder we are in the shape we are in it is like 1933 all over again,u are a fool like all the other commies,did you grow up in a closet?and if Jesus came backU would not go with him and as always WHAT HAPPENED TO MY COUNTRY

[shangrolah]

05:19 PM on 03/31/2012

Nobody mentions the fact that the Justices get free medical care, free all inclusive medical care from the government that goes far beyond anything people in the military get or people on Medicare or Medicaid do. Sure they love the Freedom-- of having others pay, being able to pick their own doctors, and never having to worry.

[conservgirl8]

08:29 PM on 03/31/2012

Are you in your pity pot? Pull yourself up and fend for yourself. You sound like a baby. This country is the land of the free, where you, and you alone, do what you need to do to make your life fruitful. Don't blame the Justices. Blame yourself.

[shstu]

11:03 PM on 03/31/2012

No one could've said i better, conservgirl8 - thanks for saying it plain!

[conservo]

11:39 PM on 03/31/2012

Well said, Conservgirl....Fanned and faved.

[conservo]

11:37 PM on 03/31/2012

You are completely wrong. It is not "free" medical care". It is a part of their benefit package for the job that they do....they EARN IT...get it. If you want to talk about "free" medical care that is what folks on welfare get for sitting around and doing nothing but popping out babies.

[nia122]

05:05 PM on 04/01/2012

Ckearly, you know very little about people on public assistance. But feel free to disparage them. Just remember that "as Ye judge, so shall Ye be judged and whatever measure you meet out shall be measured unto you."

[Berlet98]

05:17 PM on 03/31/2012

Speculation is ripe on how the United States Supreme Court will rule on the constitutionality of the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010, the ultimate title of what most Americans know as Obamacare.

Signed by President Barack Hussein Obama on June 25th, 2010 after extensive late-night machinations, bribes, and add-ons, the bill was originally titled the Patient Protection and Affordable Care Act by the Democrat Senate. It was apparently changed in view of the fact there were few patient protections in the 2700 page monstrosity.

Obamacare is not affordable by either patients or the nation but they had to call it something palatable. It’s not known whether any Dems ever read it before they passed it.

Anyway, nine individuals–six men and three women, (six Roman Catholics, three Jews, no Protestants)–are now empowered to secretly decide the fate of a law which applies to almost everyone in a nation of 313,274,338 souls, comprised of 51% protestants, 25% Catholics, 1.7% Mormons, 1.2% Jews, and 21% of other persuasions including Muslims and atheists.

Without suggesting t. . . (Read more at http://www.genelalor.com/blog1/?p=20091.)

[pjburke]

10:58 AM on 04/01/2012

"It’s not known whether any Dems ever read it before they passed it."

Absolute nonsense.

Of course it is "known." The bill went through extensive mark-up sessions ("mark-up" = "reading, writing, wrangling, revising") in each committee of each chamber for several months before any votes were even taken.

Only the most heroically lazy thought process -- coupled with a black hole where basic high school level knowledge of Congress should be -- could come up with the suggestion that "It’s not known whether any Dems ever read it before they passed it."

[billnritahouse]

04:53 PM on 03/31/2012

Just going through the motions to make it look legally and professionally done. They have the old rubber stamp near by, in other words, it's a done deal.
After it passes we'll find out what all there is in the bill that was passed, that has absolutely nothing to do with health care. Clauses that may appear innocent at first glance, but will end up hurting us more, and far outweigh any good Obama health care will do. Well, he promised change and we're sure getting it, like it or not. God help us!

[shstu]

11:10 PM on 03/31/2012

We've had these 3 years of all of that & more, unfortunately.....& now thanks to his being able to distract by such as racial overtones, campaign trips, "big bad Oil companies" while he flies a bazillion miles around in Air Force 1 - plus his gangs who will intimidate where they can w/night sticks, etc at Precincts, etc...we'll be lucky if we escape his "flexibility plan" of getting another term - he so freely shared w/Russians - (guess he forgot to share with his fellow countrymen!
Has he ever acted like one of US, billnritahouse?
I think NOT!

[teabagmetos]

04:03 PM on 03/31/2012

The secret deliberations are little more than a coin flipping session to see who will be the 4 and who will be the 5 in the inevitable 5 to 4 decision, when did the supreme court ever arrive at a unanimous decision?

[shangrolah]

05:20 PM on 03/31/2012

Might even be 6-3 isntead of 5-4.

[conservgirl8]

09:38 PM on 03/31/2012

That might mean that the four in dissent would be wrong. We all know the four in dissent are anti constitutionalists, right? They are "living" constitutionalists. Which is a myth of the Progressive Movement started by good old Woodrow Wilson, the father of Progressivism.

[pjburke]

11:02 AM on 04/01/2012

Which means, evidently, that you instead favor a "dead" Constitution?

It's is a Constitution for people who are living... not for those who are already dead.

[nia122]

05:09 PM on 04/01/2012

Actually, Theodore Roosevelt is the father of progressivism.

[demsxobama]

02:36 PM on 03/31/2012

"Fathom the Hypocrisy of a Government

that requires every citizen to prove

they are insured... but not everyone

must prove they are a citizen."

[shstu]

11:12 PM on 03/31/2012

What a brilliant deduction & speaks of the image of this very Administration, demsxobama!!

[conservo]

11:43 PM on 03/31/2012

I've been fathoming it for far too long already.

[dducenaquarter]

02:34 PM on 03/31/2012

"One of the traditional methods of imposing statism or socialism on a people has been by way of medicine. It's very easy to disguise a medical program as a humanitarian project." Ronald Reagan

[celtcalgal]

02:35 PM on 03/31/2012

Oh Yeah, the rich bad actor.

[bkdodge4570]

02:37 PM on 03/31/2012

Oh yeah..... the former President.
What have YOU done?

[rhuffie]

03:46 PM on 03/31/2012

And political ideology is the traditional method of rationalizing away the moral obligation to care for those less fortunate.
"It's very easy to disguise a medical program as a humanitarian project.'
I will admit this guy's administration had some positive aspects but this quote is idiotic.
And it proves my statement.

[conservo]

11:50 PM on 03/31/2012

And just why is that I have a moral obligation to pay for your medical procedure at the point of a gun?

[conservo]

08:18 PM on 04/04/2012

Conservatives give much more to charity than liberals (according to a very recent poll that has been much broadcast). THIS is not selfish. Selfish is expecting the government to confiscate the earnings of others so that they can give it to you (or other).