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Supreme Court likely to vote on health care law Friday

8:59 PM, Mar 29, 2012   |    comments
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By Richard Wolf, USA TODAY 

WASHINGTON - The fate of President Obama's landmark health care law likely will be decided Friday in an oak-paneled conference room adjoining the chambers of Supreme Court Chief Justice John Roberts.

There, the nine justices will meet alone to discuss the case that transfixed Americans for three days of oral arguments this week. When all have had their say, they will vote in order of seniority.

That initial decision may be altered as drafts of majority and dissenting opinions are written, circulated and rewritten, often many times. It might even be reversed during the lengthy writing process if one or more justices switch sides.

But one thing almost never changes. For most of the next three months, only the justices and 39 law clerks - four per justice and one each for the three living retired justices - will be privy to the ruling. And even in an age of Twitter and YouTube, it won't leak.

"I think the Supreme Court is the one institution that doesn't leak in modern-day Washington, D.C.," says Steven Engel, a lawyer who served a decade ago as a law clerk to Justice Anthony Kennedy, a potential swing vote on the health care law.

After court adjourned at 2:24 p.m. Wednesday, the justices met to discuss Monday's arguments - on whether an 1867 tax law should block any decision until 2015, when Americans who refuse to buy insurance would pay penalties. Based on comments Monday, they likely voted to plow ahead.

Friday, according to tradition, the justices will take their places around the conference table, then speak and vote. Roberts, as chief justice, will go first, followed by Antonin Scalia, the longest-serving justice.

Once the vote has been taken, the senior justice in the majority will choose the author of the historic decision. That justice may assign a law clerk - perhaps someone as young as 25 - to write the first draft, but the justices soon will take over. "This is huge, and the way it's written will have a lot of implications," says Carrie Severino, who clerked for Justice Clarence Thomas four years ago.

There will be multiple opinions. Not only are the justices likely to split into groups, but the case itself involves many parts - the tax act's potential impediment, the mandate that most Americans buy health insurance, the mandate's connection to the rest of the law, and the expansion of Medicaid.

"There will be a back-and-forth dialogue between the majority and the dissenters, and changes will happen to both opinions," says Neal Katyal, the former acting solicitor general, who clerked for Justice Stephen Breyer nearly 20 years ago. Almost all that will happen in writing, "which is really good," he says. "The formalized process helps sharpen the ideas."

In late June, the rulings will be released. Until then, anything is possible - even some judicious jousting by justices seeking to persuade a wavering colleague.

Says University of Michigan law professor Richard Primus, who clerked for Justice Ruth Bader Ginsburg 12 years ago, "I would imagine Justice Kennedy could keep his dance card full for a long time if he wanted to."

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