The Supreme Court ended its oral arguments in the health care cases yesterday afternoon.
When the justices walked back behind the giant crimson curtain, they'll be ensconced in their marble temple to deliberate and write opinion on these cases, probably until late June, when the term ends.
So what's next?
The justices will meet in conference, where they vote on the cases and the chief justice will assign who will write which opinion.
Remember: If the chief justice (John Roberts) is in the majority, he can write the opinion himself or assign it to one of the other justices. If he is in the minority, and the senior associate justice (Antonin Scalia) is in the majority, he will write or assign.
Also remember: These are essentially three cases all rolled into one bank of cases, so expect multiple opinions on the separate questions. This could make things complicated, especially if concurring opinions come into play.
All this means it could get weird.
And by weird, I mean we could see some unusual coalitions formed between the justices and some surprising decisions that may or may not bring clarity to health care reform.
Legal analysts can prognosticate all they want about the individual mandate or Medicaid expansion, but we won't know until we know. This is an historic set of cases and weird things can happen when history is on the line.
Remember: Chief Justice Earl Warren got an unanimous decision in Brown v. Board of Education.
I'm not suggesting that Chief Justice Roberts would try for that. The two wings of the Court are too recalcitrant and entrenched in their ideologies to try for a unanimous decision.
So where do the votes likely stand right now?
- Three solid votes to strike down health care reform: Justices Scalia, Clarence Thomas and Samuel Alito
- Four to uphold health care reform: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan
- Two swing votes: Chief Justice Roberts and Anthony Kennedy
This is just a cursory, superficial head count based on the arguments from the past three days, but the three votes against are pretty set.
Chief Justice Roberts could be a split vote in multiple decisions, voting one way in one decision and another in another one.
But it really falls to Kennedy to decide if health care reform stands or falls. He's the swing vote and most advocates go into the courtroom with arguments tailored to Kennedy.
Remember: The magic number at the Supreme Court is five. Five votes is all that is needed, and the Court has made a myriad of 5-4 decisions in the past couple of decades.
We also could see split opinions – not a straight up-or-down vote to keep or throw out health care reform as a whole.
For example, we could see the individual mandate struck down, but the Court decide to keep some of the provision and not throw the baby out with the bath water.
Then again, we could see some other kind of combination that confuses everyone – especially Congress.
Then again, it doesn't take much to confuse Congress these days.
To learn more
NPR's Nina Totenberg has a round-up of Wednesday's arguments, from the premise that the justices were struggling with the individual mandate, since it is so central to the Affordable Care Act.
SCOTUSBlog has all their coverage throughout the three days all in place. If you want solid legal analysis, SCOTUSBlog has been on it.
And not to be shown up, McSweeney's is reporting on a groundbreaking opinion the Court handed down this morning.