Why The Supreme Court Left Us Hanging On Healthcare

If you turned on a TV news show Monday morning, you were probably told to expect a ruling by the U.S. Supreme Court on the Obama Administration’s Affordable Care Act any minute. Newsrooms around the country were braced for the most important ruling of the Court’s term, on what has become the centerpiece of the President’s domestic policies and a vital pivot point in the coming Presidential election. SCOTUSblog, a go-to website that monitors the Court’s activities, added staff and bolstered its servers to the tune of some $10,000 a day in order to cover the verdict, expected soon after 10am Eastern Time. Don’t touch that dial.

And then — nothing. While the Court did issue major rulings on everything from Arizona’s controversial immigration law to a Montana law on campaign spending, it quit for the day without addressing health care and is expected to pick up again on Thursday.

Supreme Court justices first heard oral arguments on health care reform in late March, and took a preliminary vote on the health care issue on March 30 — at which point both the majority and the minority began drafting its opinions as justices kept discussing the constitutionality of the Affordable Care Act amongst themselves. So now, nearly three months later, what’s behind the continued delay?

According to legal journalist Lyle Denniston, who currently writes for SCOTUSblog and has been covering the Supreme Court since 1958, this Court typically releases decisions when they’re ready, often working up to the last minute polishing its published opinions.

“There are little tell-tale signs that they aren’t finished with it until the very last minute before they release it,” Denniston says. The Court’s decisions are usually published in a formal pamphlet, “but sometimes we’ll just get a broadside just as if it came right off the printer.”

The Court set the official due date for the majority’s draft on June 1, and the date for the minority’s draft on June 15. Each side had to submit an official draft on these dates—but not a final one. Both sides have most likely kept working on their drafts, negotiating finer points or even major ones, right up until the court recesses for the summer. According to published guidelines for U.S. Supreme Court procedures:

By law, the U.S. Supreme Court’s term begins on the first Monday in October and goes through the Sunday before the first Monday in October of the following year. The Court is, typically, in recess from late June/early July until the first Monday in October.

Justices can change their vote or call back their opinion up until the moment the opinion is formally announced. So it’s possible—but unlikely—that as the recess date approaches, the justices’ final decision may still be up in the air.

More likely though, the justices are lobbing emails back and forth (or knocking on each others’ doors for a face-to-face chat) to resolve the finer points of the formal opinions that will become historic legal precedent.

Chief Justice John Roberts usually chooses not to postpone announcement of decisions once they’re ready, Denniston says, whereas earlier Chief Justices might have avoided announcing too many high-profile decisions on one day, aware that some of the decisions will inevitably get short shrift in the media.

Under Roberts’s tenure, the Court usually avoids that problem by spacing out their workload all year long. Roberts is known for not allowing Court decisions to pile up in June. But when Roberts’ Court does end up with a bunch of decisions ready around the same time, he still chooses to announce each case when it’s ready. “This case is the last probably because it’s the hardest,” Denniston said.

The Court almost always wraps up its decisions for the term by the last day in June. It has a few times waited until the first days of July. But don’t worry: Roberts has promised everything will come out on Thursday. The Court has still to announce its decision on five other cases, including a title-insurance case and whether it is a crime to lie about military honors.