Everyone in healthcare has at least one big, potentially life-altering question on their minds this week: When?
That is, what day will the U.S. Supreme Court issue its opinion in King v. Burwell? The justices are slated to decide in the case whether insurance premium subsidies, under the Affordable Care Act, should be allowed in all states or just those with their own insurance exchanges. If they rule against the subsidies, the consequences could be dire. An estimated 6.4 million people may no longer be able to afford their insurance, potentially throwing the future of the law itself into question and providers and insurers off-balance.
There's a diminishing window for the court to deliver its conclusion. Could it come this Thursday or Friday with other opinions scheduled to be released those days? Will the justices schedule another day this week to release opinions? Will they wait until Monday of next week, which is also scheduled for the release of opinions? Tuesday?
Could they go into July? July! (Please don't go into July.)
The answer to all those questions is “maybe.” Experts say the court typically waits until the last two weeks of June to release its biggest, most controversial decisions. Those cases take longer because there tends to be a lot of negotiating between the justices leading up to a decision. In a landmark case such as King v. Burwell, many of the justices may also want to write their own dissents and concurrences.
In the last major Supreme Court case over the ACA, in 2012, Chief Justice John Roberts wrote the majority opinions; Justice Ruth Bader Ginsburg wrote an opinion concurring in part and dissenting in part; Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas joined in a dissenting opinion; and Thomas wrote another dissenting opinion.
The decision in that case came on the last Thursday of June 2012. There were no more Mondays that month.
Right now, the last scheduled day for the release of opinions this term is Monday.
With a couple of notable exceptions, healthcare journalists and experts have been careful not to predict an exact day for the ruling.
SCOTUSblog, widely regarded as among the most astute court watchers around, tweeted Monday, " "Odds are that SCOTUS will decide Obamacare this Friday."
CNBC reporter Larry Kudlow became Twitter-famous last week when he tweeted that an inside source told him the opinion would be released June 18. Those who watch the court are wary of such predictions, heeding the words of Ginsburg who has said, “Those who know don't talk, and those who talk don't know.”
Still, Kudlow's tweet made wonkish hearts beat a little quicker that day. The Twitter universe mocked Kudlow mercilessly when his prediction failed to materialize.
“I tried,” Kudlow tweeted in response. “It was good source. Didn't pan out. So it goes. As I wrote, never any certainty in these things. Sorry. But decision very soon.”
Lisa McElroy, an associate professor of law at Drexel University and an expert on the Supreme Court, said there's just no way to know when a decision will come down. The justices could technically continue releasing decisions in July, she said, but she can't think of a time when that's happened. She also said she believes it's unlikely they'll go into July given that they have only seven cases left to decide. Sometimes the justices release only one opinion in a day, and other times, such as on June 18, they issued six.
Thursday, Friday and June 29 have been scheduled as decision days. Friday was added to the court's calendar after the court distributed its opinions Monday.
On Monday, more than 42,000 people watched SCOTUSblog for updates on opinions. All those people, plus more, will likely be back watching the blog and Twitter—eyes unblinking—Thursday. There's a good chance they'll be disappointed again.
