Art Lien / NBC News
Gregory Katsas speaks March 26, 2012 as Associate Justice Sonia Sotomayor and Associate Justice Samuel Alito Jr. listen at the Supreme Court in Washington.
With three days of Supreme Court oral argument in the challenges to the 2010 health care law now over, a tense lull has settled over Washington.
Health care reform “cannot wait, it must not wait, and it will not wait another year,” President Barack Obama said on Feb. 23, 2009. But Obama and everyone else must wait at least several more weeks to learn the fate of the health care overhaul he signed into law in 2010.
With the court’s public ritual over, it’s not that there aren’t big decisions being made ... it’s just that they’re all being made behind closed doors.
On Friday, hidden from news cameras, sketch artists, and reporters, the justices will hold one of their weekly conferences.
And at the end of this private meeting -- not recorded for public release as the oral arguments were -- they will have voted on all of the Affordable Care Act issues. This includes the individual insurance mandate, what parts of the law can stand if the mandate is void, and the expansion of the Medicaid program.
According to George Washington University law professor Orin Kerr, a former law clerk for Justice Anthony Kennedy, the justices “will take tentative votes as to how to decide the case. Based on those tentative votes, different justices will be assigned to draft the majority opinion -- or perhaps majority opinions, as there are several moving parts in this case. Eventually, proposed majority opinions will be circulated among the justices: If any proposed opinion gets five votes, it becomes a majority opinion of the court.”
Dr. Zeke Emanuel, former White House advisor for health policy in the Obama administration, offers his perspective on the impending fate of Obama's "Affordable Care Act."
There are more than 30 other cases in which the justices haven’t yet issued rulings this term. As the weeks go by and the court announces its rulings, the yet-to-be-decided list will dwindle so that by June 25, the last scheduled day of the court’s 2011-2012 term, the ACA cases may be the last ones remaining to be announced.
While no one can predict how the justices will decide based on the questions they asked during oral arguments, the individual mandate seems at risk.
Justice Kennedy said Tuesday that the government is telling the individual citizen that he must buy insurance, “and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”
“Do you not have a heavy burden of justification?” Kennedy asked Solicitor General Donald Verrilli in Tuesday’s argument.
Even if a majority of the justices found the mandate to be unconstitutional, there are, said Justice Ruth Bader Ginsburg Wednesday, “so many things in this act that are unquestionably okay.” If the mandate is struck down, the problem for the justices who are supporters of the law would then be to “salvage rather than throwing out everything,” as Ginsburg put it.
Read our coverage of each day of the oral arguments:
Court signals entire health care law might need to be struck down
Supreme Court expresses skepticism over constitutionality of health care mandate
Court signals it will decide constitutionality of individual mandate
Regardless of how the justices’ decision turns out, the political impact will be powerful and immediate.
A ruling striking down the mandate or the whole law might cause a backlash among Democrats comparable to that caused by the 2000 Bush v. Gore decision.
Chris Jennings, a health care policy advisor to President Bill Clinton, said a ruling striking down the mandate or the law might cause the Democratic base voters to work even harder to elect Democrats on November.
Until now, he said, many Democrats “haven’t been engaged in a meaningful way” in making the case for the ACA. Many Democrats, especially on left side of the party, were dissatisfied with the law, preferring a single-payer system or “Medicare for All.” But the court might light a fire under them.
“For the court to strike down this law would be to presume the powers of the Congress and abandon its role as an impartial and deliberate decider of constitutional law," said Sen. Richard Blumenthal, D-Conn., Wednesday.
Art Lien/NBC News
Justice Stephen Breyer holds two sections of the Affordable Care Act during a third day of arguments over the fate of the health care law.
But it’s worth remembering that the high court has struck down all or parts of more than 160 federal laws since 1789, more than a dozen since 2000.
Will Congress act if the court strikes down the law? Probably not, other than having some “messaging” votes in the months leading up to Election Day.
House Republicans had one of those votes last week when they voted to eliminate the Medicare cost control board that is part of the ACA.
Read the transcripts from the oral arguments:
The afternoon transcript of Wednesday's oral arguments (.pdf)
The morning transcript of Wednesday's oral arguments (.pdf)
The transcript of Tuesday's arguments (.pdf)
The transcript of Monday's oral arguments (.pdf)
It’s not likely Congress can do anything substantive until 2013: remember that it took more than a year to write and enact the ACA. The Senate Finance Committee chairman Max Baucus held his first hearing on Feb. 25, 2009 -- and the law was signed by Obama on March 23, 2010.
Debbee Keller, a spokeswoman for the House Committee on Energy and Commerce, which would be one of the starting points for health care legislation, said Thursday Republicans “have already begun advancing bills to improve our health care system, including medical liability reform to end excessive lawsuits and bring down costs for patients, doctors, and taxpayers. The Supreme Court's ruling will be a major turning point in this debate, and we look forward to developing additional replacement legislation when the Court rules.”
The Supreme Court is debating how much of the health care overhaul law should be salvaged if the health insurance requirement is thrown out. NBC's Pete Williams reports.
But after a potentially traumatic Supreme Court ruling for ACA supporters, it’s hard to imagine bipartisan consensus, even on small pragmatic reforms.
In the lull before the justices hand down their ruling, both Democrats and Republicans have plenty of time to think about how much the least visible branch of government matters.
“We’re going to pay the price of this Supreme Court for a generation,” Sen. Charles Schumer, D-N.Y., lamented back in 2008 when the high court upheld Indiana’s voter identification law.
Either supporters or opponents of the heath care law might be repeating those words this summer.