Healthcare Business News

My three days of listening to the Supremes

By Joe Carlson
Posted: March 29, 2012 - 2:45 pm ET

After three years of reporting on healthcare reform—years of Congressional hearings followed by endless litigation, of speculation followed by obfuscation, of dreams of traveling to the Supreme Court followed by the hard reality of a wooden chair below my rear—the morning of oral arguments had arrived.

The ceiling of the Supreme Court Chamber rose 44 feet above my head, high enough to accommodate the lofty ideas about to come. Red velvet curtains draped down the marble Ionic columns inside, looking stately from a distance but up close bearing several marks and punctures. Then came the court crier's call:

“Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention for the court is now sitting,” she said, signaling that March 26, 2012, the opening day of arguments over the landmark reform law, was in session. Five hundred or so spectators, who had been warned 30 minutes earlier to stay silent in the courtroom, watched in rapt attention.

And then … Justice Antonin Scalia read aloud his opinion in case No. 10-1261, Credit Suisse Securities (USA) LLC v. Simmonds. Something about Section 16(b) actions and insider trading. An important decision, without a doubt, to somebody, somewhere.

From my vantage point, squarely behind one of the aforementioned 9-foot-wide marble-column-and-curtain sets, Scalia's echoey voice floated from his unseen mouth and over the assembled crowd as if the courtroom itself was speaking to the audience. Chief Justice Roberts went next, reading his decision in Zivotofsky v. Clinton, a more-interesting conundrum about whether a young man's U.S. passport could list his birthplace as Israel.

Finally, the main act was announced: case No. 11-398, Department of Health and Human Services v. Florida.

As in most cases before the high court, the justices wasted no time with the lawyers' formal statements. None of the three attorneys got more than a minute or so into his opening preamble about the superior merits of his position when one of the eight justices who speak during oral arguments interrupted him with often-barbed questioning.

(Florida Attorney General Pam Bondi said at a news conference later that Associate Justice Thomas Clarence, who does not speak in court, nodded vigorously several times to signal his agreement with certain points.)

What ensued on that first day was a pointed flurry of legalese and learned jargon. Though the hearing was billed by some observers as a discussion over whether the requirement to buy health insurance functions as a tax, a great deal of the arguments concerned whether 26 USC Section 7421 is jurisdictional as it relates to Section 5000A(g) of the ACA since its tax penalties are collected in the same manner as Chapter 68, subchapter B penalties.

The 90-minute arguments seemed to slowly whiz by, like slow-motion footage of a passing bullet train. The discussion left some reporters around me looking mystified, and others appearing to try very hard to project the sense that they had just borne witness to a deeply informative series of cross-examinations.

The one thing that seemed clear to everyone was that this court didn't seem to have any intention of agreeing with the lawyer they had appointed to tell them that they should punt on the reform case until 2015. Perhaps that made sense, since the court still had 4½ more hours of arguments scheduled for Tuesday and Wednesday.

I ended my day in the Supreme Court the same way I began it: drinking coffee, as strong as I could find it.

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Day 2

As the second day of oral argument dawned, a funny thing happened in the court: The justices and attorneys started talking about the merits of the case. Questions were asked, such as: Was this a legal exercise of congressional power? Does Congress have plenary (police) powers to force citizens to take affirmative acts? And was this the best way for Congress to accomplish its goal of expanding insurance coverage?

I scribbled quotes in my stylized chicken-scratch and turned over notebook sheets as quickly as I could, sometimes devoting an entire page to lengthy pronouncements from justices Scalia and Stephen Breyer, who sounded more like witnesses testifying in a trial than judges presiding over a court.

Solicitor General Donald Verrilli, Jr., seemed as though he hadn't slept in two days, reciting identical-sounding answers to different questions and seeming unable to formulate responses to obviously foreseeable inquiries, such as what are the limits of congressional power?

Verrilli's performance at the dais left the more liberal-leaning justices like Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor to make the Democrats' arguments part of the public record, fending off potential swing-conservatives John Roberts, Anthony Kennedy and Scalia.

When Justice Samuel Alito asked Verrilli to state “as succinctly as you possibly can” his limiting principle, Verrilli seemed to tap into his inner James Joyce, unleashing a 303-word, two-part legal discursive that was quoted, in part, in the official court transcript as: “When Congress is regulating—is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme.”

Seated again behind my friend, the tall Ionic, I couldn't see whether Thomas was nodding in agreement.

Twice during the proceedings, Breyer fixated on a mysterious illness “sweeping the nation,” intoning his hypothetical in the terms of some legal thriller-cum-apocalypse flick: “A disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die,” Breyer said. “Can't the federal government say all 40 million get inoculation?”

As National Federation of Independent Business attorney Michael Carvin tried to answer that, no, Congress would not have such a power, Mother Jones magazine reporter Adam Serwer behind me muttered, “Just say it Breyer: Zombies.”

The oral arguments felt reanimated all day long, in fact, thanks to the miracle of recording technology.

Minutes after I arrived in the press room, broadcast reporters were already playing audio official versions of the proceedings, scanning for sound bites. An hour later, snippets of the program I had just heard live sounded over talk radio blaring in my taxicab. That afternoon, I heard the track again mashed into a video spot prepared by Modern Healthcare's editors. That night, Breyers' oaky voice greeted me in the cab on the way back to my hotel.

Day 3

The third and final day of arguments offered a kind of constitutional double-header, in which the liberal and conservative teams on the court would square off over not one, but two questions.

First up—after some initial reading of unrelated opinions being published that day, including one in which Scalia seemed to be ad-libbing from the bench, and another that had Ginsburg reading so slowly that even the reporters at weekly print publications were sighing in impatience—came the ominously titled issue of severability.

Lawyers and judges sparred over whether the individual mandate could be cleanly sliced from the reform law like the polyp it had become the day before, or if more serious surgery would be required.

The justices made clear that the question came down to discerning congressional intent, though one doubts anyone in the room wore a WWCD bracelet.

Rather, something curiously like partisan politics seemed to be in play, with more conservative-leaning justices seeming to ask questions that would have favored the position of the party whose members did not, any of them, vote for the reform law while it was still in Congress.

But an interesting line of counterintuitive reasoning was in play. While a casual reading of the issue might lead an observer to believe that cutting the fewest number of words from the law would leave the largest amount of congressional intent intact, this was still about healthcare economics, which meant nothing was simple or intuitive.

The justices discussed how the healthcare law is actually a collection of interrelated provisions, some of which work to counteract unwanted effects of the others. Cutting one small piece could create unintended consequences.

Neither the law's supporters nor its detractors thought that cutting the fewest number of words would leave Congress' intent intact. The president's lawyer urged the cutting of three insurance reforms if one of them had to go, while the attorney for the Republican-led states said that killing the entire law would come closest to approximating Congress' real goal, which was: Don't make this mess any worse than it already is.

The lone voice in the woods arguing for striking just the mandate came from a lawyer named H. Bartow Farr III. And the court itself ordered him to argue that point.

Kennedy—who was among the 3 1/3 justices I could see directly that day, owing to an upgraded seat—appeared to be feeling the full weight of his position as a presumptive swing vote. He frequently palmed his head or leaned a cheek on his knuckles, concentrating, frowning, projecting irritation, and generally looking like a man filling out an income tax return.

Scalia said something that sounded nasty about his wife, but later claimed that he was talking about his own death, not hers. History, via the court's transcriptionist, will have to be the judge of that.

After two hours, the court broke for a brief intermission, triggering a rapid sequence of descending stairs, firing off a story, slurping coffee, visiting a bathroom, munching a chocolate-bar-lunch, and marching back up and through security to retake my upgraded seat for the week's orphan argument: alleged coercion via forced expansion of Medicaid.

Unlike the media, whose many empty seats revealed how seriously they took this fourth and final session of the week, Kagan showed she'd been thinking hard about this question. Specifically, how could a state claim a lavishly subsidized expansion of Medicaid amounted to coercion?

A minute into Paul Clement's opening, she stopped him cold with a proposition: What if she offered him a “boatload of money,” say $10 million, as a salary for a job. Would he take the job? As Clement hedged, sensing the trap, Kagan pounced with chiding repetitions of “Wow! Wow!” as the audience crowed about a lawyer saying publicly that he would think twice about an eight-figure-a-year job.

“I'm offering you $10 million a year to come work for me,” Kagan said, “and you are saying that this is anything but a great choice?”

“Sure,” Clement replied, “If I told you, actually, it came from my own bank account. And that's what's really going on here, in part.”

The press gallery responded with gasps and oooh's, and some minutes passed before Kagan said anything else.

Questions in the Medicaid debate broke along the predictable political lines from earlier. Breyer recited the federal tax code verbatim to suggest that states had fundamentally misread the law. Roberts all but accused Verrilli of lying about whether the government had ever made a credible threat to cancel a state's Medicaid funding. And Kennedy looked positively miserable.

Verrilli ended his time with what sounded like an attempt to make the gut-level pitch for the bill that he'd failed to deliver the day before, equating the expansion of insurance coverage with “securing the blessings of liberty” for formerly uninsurable Americans with costly chronic conditions who could now receive healthcare and the freedom of physical health.

Clement didn't miss a beat, retorting that it was a funny kind of liberty to force states to expand expensive programs and people to purchase insurance they didn't want.

And finally, almost abruptly, Roberts sounded the final buzzer and declared, “The case is submitted.”

Reporter Joe Carlson covers legal affairs, including healthcare reform, fraud and compliance, labor, and regulatory news for Modern Healthcare.

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