WASHINGTON — Eight years ago, George W. Bush administration lawyers went before the Supreme Court arguing that the justices should defer to the president during wartime and allow the commander in chief to decide how to treat “enemy combatants” held at Guantanamo Bay.
To their surprise, they lost. Justice Anthony M. Kennedy joined with the liberal bloc to rule that these prisoners had a right to a judicial hearing.
This week, President Obama’s lawyers went before the Supreme Court arguing that the justices should defer to Congress when it comes to regulating health insurance. But they too ran into sharply skeptical questioning, this time from Kennedy and the court’s conservatives.
The tenor of the comments over three days of oral arguments suggested the nine justices had made up their minds.
On Friday morning they will meet in private to cast their votes. Their decision will be kept secret within the court and is not likely to be announced until late June. Then, the court will issue a lengthy opinion for the majority explaining its ruling, along with one or more strong dissents.
Although the opinions will be revised and rewritten throughout the spring, the outcome will almost certainly depend on the votes cast Friday. It’s rare for a justice to switch sides in a major case after the vote is taken.
This week’s arguments cheered conservatives and shook liberal supporters of the federal healthcare law.
“I left the court each day feeling as good as could be,” said Georgetown University law professor Randy Barnett, a libertarian and the leading academic critic of the law’s mandate that all Americans buy health insurance. The arguments, he said, “couldn’t have gone much better for our side.”
Barnett has argued that although Congress has broad power to regulate commerce, it cannot force any person to buy a product or engage in commerce. For that reason, he contends that the individual mandate is unconstitutional.
Kennedy, seen as the crucial swing vote, seemed to adopt this view in Tuesday’s arguments. He called the mandate to have insurance “unprecedented” and “a step beyond what our cases have allowed.” He said the government had “a heavy burden” to justify such a law because it “requires an individual to do an affirmative act.”
If President Obama’s healthcare law is struck down, “this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting president,” wrote George Washington University law professor Orin Kerr, a former Kennedy clerk.
Liberal advocates were taken aback by the hostile questioning from the court’s conservative wing.
“I was very surprised to see how it played out. But I’m not completely despondent,” said Ian Millhiser, a lawyer and policy analyst at the Center for American Progress. He said he remained hopeful that Kennedy and Chief Justice John G. Roberts Jr. would not go so far as to strike down a major piece of social legislation.
The nine justices meet alone in an ornate, wood-paneled conference room. The chief justice will begin the discussion, describe the issue to be decided and then say how he will vote. From there, the discussion moves in order of seniority, from Justice Antonin Scalia to the newest, Justice Elena Kagan.
If Roberts is in the majority, he will decide who writes the opinion. But since four separate questions raised by the healthcare law are before the court, there could be more than one majority opinion.