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Obamacare on Trial: The Next Round of Arguments

8:05 AM, Mar 30, 2012 • By ADAM J. WHITE
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But in this case, there is a further caveat: even if a justice's comments at oral argument did reflect his own conclusions, we must not assume that his conclusions this week will not change in the weeks to come. And of course, the justice I have in mind on this point is Justice Kennedy.  

Kennedy is not just the "swing justice," poised in the middle of the Court in this particular case. He is also known to reconsider his initial conclusions once he starts seeing draft opinions. As any lawyer knows, a legal argument that seems compelling in conversation might well fall apart once it is put to paper; sometimes an argument "just won't write." His former clerk, law professor Michael Dorf, explained this process Wednesday morning to Bloomberg Radio's Tom Keene and Ken Prewitt:

He doesn't fully know how he should be deciding a case until he "tries it on."  That is, he will see if a position he wants to take will, as he says, "write."  That is, he will try to draft an opinion; if he finds it persuasive to himself, he'll stick with it.  He sometimes finds, "you know, I just can't make this work, I'm going to come out the other way." So it could well be the case that he hasn't decided yet, and he might vote at the conference at the end of the day today or Friday and still not have decided before he sees how it comes out.

Lawyers familiar with the Supreme Court's decision in Planned Parenthood v. Casey (1992) know this all too well. As James Simon recounted in The Center Holds, seven of the Court's nine justices voted at post-argument conference to reverse Roe v. Wade and strike down Pennsylvania's anti-abortion laws. Chief Justice Rehnquist happily assigned himself the majority opinion—but in the weeks that followed, Justice Kennedy reconsidered his vote.  With Justices David Souter and Sandra Day O'Connor, who also had changed their minds, a new opinion was secretly drafted, preserving Roe's basic protection of abortion.  When word spread within the Court that the three Justices had changed their minds, it "was as if a neutron bomb had exploded," Simon recounted. "Chief Justice Rehnquist attempted to talk Kennedy out of his support for the joint opinion, and Justice Scalia, less diplomatically than the chief, expressed his outrage to Kennedy."  Yet Justice Kennedy did not return to his original conclusions; in the process of drafting the opinion, he had irreversibly changed his mind.

And so the constitutionality of Obamacare's individual mandate will not be decided inside the Court's conference room this week. The justices may well vote, assign opinions, and start writing opinions, yet nothing will truly be settled for weeks, until the opinions start to take shape and the justices have time to ruminate.

As interesting as this week's oral arguments have been, the most important oral arguments may have yet to come. They will happen in the Supreme Court, to be sure, but not in the courtroom, and not in the public eye.

Adam J. White is a lawyer in Washington, D.C.

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