How Justices Decide Big Cases Such As Health Care

In advance of the Supreme Court's ruling on the Obama health care law, Renee Montagne talks to Jamal Greene — associate professor at Columbia Law School and former clerk for Justice John Paul Stevens — about how the Supreme Court thinks through momentous cases.

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RENEE MONTAGNE, HOST:

As we await the Supreme Court's ruling on President Obama's health care law, many have been taking bets on the outcome. The political stock market Intrade, which allows you to bet on real world events, currently gives about an 80 percent chance that the court will rule that the mandate to buy insurance, that all important part of the health care law, is unconstitutional.

Various news organizations have also been polling former clerks and law professors for their predictions on what the court will decide. But the truth is nobody really knows. To help walk us through how the court thinks through momentous cases, we reached Jamal Greene. He teaches law at Columbia and he clerked for Justice John Paul Stevens.

Good morning.

JAMAL GREENE: Good morning.

MONTAGNE: So I just said it, but is it true? Nobody really knows what the court will decide on Thursday? I mean, how is that possible?

GREENE: Well, that's a good question. It does seem likely that outside the building probably no one knows. Maybe the justices' spouses might have a little bit of an idea but there's a real culture at the court of keeping things close to the vest. The clerks work very closely with the court and with the justices themselves and there's a real culture at the institution that you don't talk. It's unlike most of Washington.

MONTAGNE: And I gather then - I mean, you clerked for Justice John Paul Stevens - a loyalty as well?

GREENE: Loyalty is part of it. Part of it is that law clerks tend to be pretty risk-averse about their careers and they wouldn't want it to get out that they've been talking to journalists. It's really much more cloistered than you'd expect at Congress or at the White House.

MONTAGNE: Well, walk us through the process. There were oral arguments back in March. And after that, the justices what, get together for an initial vote?

GREENE: That's right. They get together for an initial vote at a conference that they hold. They talk about the various cases decided that had an oral argument that week. Now with the health care arguments though, those were the only arguments during the week, so they'll have a conference, they'll run through initial lineup of the votes and someone will get assigned a majority opinion, and then they typically don't really talk about it until that opinion is circulated for the first time.

MONTAGNE: Well, OK. Back up just momentarily. Meaning, very quickly, after they hear the arguments on both sides, the justices vote and make their choice.

GREENE: That's right. The justices usually know fairly soon after oral argument, either the same day or later that week, exactly how the vote is going to come out. Now, sometimes they do change their minds. But in most cases the vote is known right away.

MONTAGNE: Then after a justice has been chosen to write the majority - and another to write - if there's a dissent - the dissent, they're then circulated. For what reason? It sounds like the justices have made up their minds.

GREENE: Well, sometimes they've made up their minds and sometimes they haven't. And the spirit of a majority opinion is often I'll write an opinion as best I can and see how many votes I get. I mean, you don't know the reasoning of the opinion necessarily, then some people who were in the majority might say well, I really would rather you change a little bit of that before I decide to sign on, or even someone who is on the fence might read the opinion and changed their minds. So there is some lobbying that goes on after the initial vote, but the lobbying tends to be sort of drafts being exchanged back and forth between different chambers.

MONTAGNE: Not like in Congress, where leaders are constantly counting the votes and twisting arms, if it comes to that.

GREENE: Yeah. The arm twisting is really kind of a mental exercise at the court, I guess. It's a little bit more intellectual in the sense that it is on paper, so people are really making arguments within the context of what we're used to in constitutional law. So we'll argue about original understanding or about how to read some particular precedent and so forth. It's not the kind of horse trading that we're used to seeing from Congress, where it'll say well, yeah, you scratch my back here, I'll scratch your back next year. I think that's, if that were to happen at the court it would be highly unusual.

MONTAGNE: What about you? Are you betting on this one? You don't have to tell us what you're betting or with whom, but are you trying to figure the odds?

GREENE: Sure. I'm armchair quarterbacking this as much as anyone. And I've been saying for a long time that I'd be surprised if the court were to strike down the individual mandate, and I sort of maintain that. But I've certainly been wrong before.

MONTAGNE: Thank you very much for joining us.

GREENE: Thank you for having me.

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MONTAGNE: Jamal Greene is an associate professor at Columbia Law School. He clerked in a 2006 term for Justice John Paul Stevens.

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MONTAGNE: And you're listening to MORNING EDITION, from NPR News.

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