(Repeats story published April 26, no changes to headline or
* Hearings end this week, decisions not due until June
* Online betting site predicts law will be struck down
* Of the court itself, a top lawyer says: "Nobody leaks"
By Joan Biskupic
WASHINGTON, April 26 This week the U.S.
Supreme Court wrapped up the last oral arguments of its current
term. Now comes the nationwide angst of waiting - as long as two
months - for decisions, particularly the one that will resolve
the most high-stakes and closely watched case of the year: the
challenge to the Obama-sponsored healthcare law.
The collective impatience is fueling a mini-industry of
rumors, wagers and speculation not seen since the Bush v. Gore
case of 2000, when a presidential election hung in the balance.
And perhaps not even then, because the court quickly put an end
to the guessing game by issuing a ruling the day after the case
A Yale Law School professor has bet a Cato Institute fellow
$100 that the healthcare law will be upheld. More than 1,300
trades on the decision have been placed on the Dublin-based
online market InTrade. (As of Wednesday, the odds on InTrade
were 61 percent that the justices will strike down the core part
of the law, which requires most people to buy health insurance.)
Predi c tions on fantasySCOTUS, an online tracker for court
enthusiasts, have jumped. The site features the banner "Predict
the healthcare cases and win a $200 Amazon.com gift card."
News outlets, including this one, are fielding (and largely
disregarding) tips from would-be sources who claim they know
somebody who knows something about action on particular legal
issues, a possible vote split, or the supposed date the decision
will be published. Even attorneys who practice at the nation's
highest court, who are the first to insist that no one should
ever trust the whisper mill, have found themselves looking for
signs and portents.
Randy Barnett, a Georgetown law school professor who
represents a group of small-business plaintiffs challenging the
healthcare law, said another law professor told him he had heard
from someone close to Justice Anthony Kennedy that he had voted
to strike down the heart of the law. Barnett said he could not
help but be encouraged - but then quickly added, "I have no
reason to put any stock in it."
The reality at the Supreme Court is that those who know
don't talk, and those who talk don't know. The justices take
their votes in secret, going around the table in order of
seniority, with no clerks or secretaries present. Draft opinions
are closely held in chambers. Discarded versions are burned or
shredded. The clerk's office does not know the outcome of a case
until a decision is about to be released. And the release date
is not set until all the writing and rewriting by the majority
and dissent is done.
Each justice has four law clerks who take a pledge of
confidentiality. T hen there are about 400 employees at the court
building, virtually none of whom would be in a position to know
the outcome of a case until it was nearly ready to be made
public. Frank Lorson, a former chief deputy clerk of the court
who worked there from 1972-2002, said the clerk's administrative
office would not have access to decisions until they were set
for distribution. "Loyalty to the institution and to the
justices" is overriding, he said.
Supreme Court spokeswoman Kathy Arberg said the court would
not comment on its internal deliberations.
So rare are leaks that it has been more than 25 years since
any word of a case's resolution apparently slipped out. In 1986
then-ABC TV journalist Tim O'Brien reported that the court
would, the following day, strike down part of a law that
required the U.S. government to balance the budget. O'Brien's
prediction of the outcome was correct - but the ruling did not
come until weeks later.
The constant buzz these days is just one more indication of
the high stakes in the dispute over the law, enacted in March
2010, that continues to divide Democrats and Republicans and,
according to polls, much of the country. No matter how the court
rules, its decision is likely to become a flashpoint in the
upcoming presidential election and an enduring topic of
"The case has a central role in our political life right
now," said Washington lawyer Cliff Sloan. A former law clerk to
now-retired Justice John Paul Stevens, Sloan said he is
constantly asked for predictions. He declines to make his
thoughts public. As for leaks, "That happens in mystery novels,
not at the Supreme Court."
Paul Clement, who argued the case for the 26 states
challenging the law, said he has not heard much speculation and
has brushed off what he has heard. He chalks up the rumors to
the many people who are paying close attention to the case but
are unfamiliar with the ways of the justices and need to fill
the vacuum until the end of June. "I've been dealing with the
Supreme Court for 20-plus years," Clement said. "This is not how
they work. Nobody leaks."
Some things can be divined, based on the court's longstanding
practices: A preliminary vote was likely taken at the end of the
argument week, on March 30, and the justices have probably begun
writing. Because the court traditionally recesses at the end of
June, its most complicated cases tend to come just before then.
Chief Justice John Roberts, or the most senior justice on
the winning side, would have already assigned the writing of the
majority opinion. (The most senior member of the losing side
assigns the dissenting opinion, although any justice can chime
in with a dissent or concurring statement.)
After that, anything can happen. Votes can shift, as can the
legal rationale that would guide all lower-court judges in
future related disputes. A justice who starts out writing for
the majority might lose a crucial fifth vote and suddenly end up
penning a dissenting opinion. One well-known change occurred in
1992 when Justice Kennedy switched his position in Planned
Parenthood v. Casey and provided the key fifth vote upholding
the right of a woman to end her pregnancy. But such secrets
become known only years later when the papers of deceased
justices are made public at the Library of Congress or other
archives. In the abortion case, the details were laid out in the
papers of the late Justice Harry Blackmun.
Tom Goldstein, a Washington lawyer and founder of the
website SCOTUSblog, s aid he briefly thought he was observing a
sign when he argued a case before the nine justices on April 16
- their first day back after the late March healthcare hearing.
When the justices ascended the bench, Goldstein thought the four
liberals seemed in particularly fine moods.
He caught himself thinking - only fleetingly - that their
good spirits might have meant a majority had voted to uphold the
law. "But," added Goldstein, "it flashed through my mind just as
quickly that what I saw meant nothing."
(Reporting by Joan Biskupic; Editing by Amy Stevens)