Do You Know if PPACA is Constitutional? Some Do Right Now

And those people are justices on the U.S. Supreme Court.  The justices met in conference on Friday, March 30, 2011 and voted on the various arguments made before the court earlier in the week. A decision to the constitutionality of the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148) has most likely been reached, but that decision may not be revealed for awhile and it may change over time.

Right now one thing is for sure, a decision was made, a vote was taken.  Right now, the individual mandate may be illegal.  Right now, the entire law may be illegal and struck down, or maybe just the individual mandate has been found unconstitutional and the rest of the law will remain in place.  Or, maybe the Court found that the Anti-Injunction Act prohibits them from ruling on the constitutionality of PPACA at this time.  All of these are possible, but what is for sure, a decision was reached.

On Friday, March 30th, the justices met in a conference room, and according to a story written by the Associated Press (AP), they cast their votes on whether or not they thought PPACA or the individual mandate was constitutional. Votes are cast by the justices in order of seniority with the chief justice going first.  The story also noted that there is usually little discussion in these meetings; that there is usually a short statement by a justice and then he or she casts his or her vote.

After the vote, the process of issuing a decision begins.  A justice will be appointed from the group holding the majority opinion, and that justice will write an opinion as to why the majority of justices came to their decision.  That opinion will be circulated amongst the other justices and they will make comments and questions in the margin.  Another draft will be written based on those comments and the subsequent draft will be circulated.  This process will continue until there is an agreement on the opinion of the majority and of those dissenting.

Can a justice change his or her opinion or vote while the opinion is being drafted and circulated?  Absolutely.  During the drafting process, a justice may decide to move from the majority to the dissenters or from the dissenters to the majority.  The AP reported that in 1992, Justice Kennedy changed his mind during the drafting process and wrote an opinion for a different set of five justices than the set he originally set out to write for. 

 Can You Determine a Result from the Questions?

During the days that followed the oral arguments, many observers felt that they could discern the outcome based on the questions asked by the justices and from their demeanor. A study published in the Journal of Politics found that of 8 million words spoken by Supreme Court justices over 30 years reveals, when justices focus more unpleasant language towards one attorney, the side that attorney represents is more likely to lose.  A count of questions in an article by McClatchy showed that Chief Justice Roberts asked 19 questions of the solicitor general, defending PPACA and only 2 to the attorney advocating that the law be struck down.

In 2008, Chief Justice Roberts issued a study in the Journal of Supreme Court History that said in the 28 case examined, 86 percent of the time, the side receiving more questions lost the case.

The McClatchy article noted though that justices sometimes play devil’s advocate with their questions, asking a question of an attorney just so they can make an argument to help frame a point of view the justice wants on the record.

So we know a decision has been made, we just don’t know what it is or why a majority of Supreme Court justices think it is the right decision; that we probably won’t know until June.