No Spitballs in the High Court, Please

Greg Stohr, with Seth Stern

DON FARRALL/GETTY IMAGES

Starting on March 26, all of Washington will be focused on 1 First Street N.E., better known as the U.S. Supreme Court. The nine justices will hear arguments over the constitutionality of the Affordable Care Act of 2010, which says every American must have health insurance or pay a penalty. It’s the first time the court has considered a president’s signature law in the middle of a reelection campaign. The justices will hear six hours of arguments over three days, more time than has been allotted to any case in decades.

Long arguments became rare after 1970, when the court set a 60-minute limit for most cases

Two sets of arguments in the 1954 Brown v. Board of Education desegregation case lasted a total of 15 hours

Arguments in the 1966 case that established Miranda rights lasted almost six hours

Lawyers held forth for four hours in the 2003 case over the McCain-Feingold campaign finance law How will the court fill six hours?

DAY 1

01:30:00

The first day’s agenda could scuttle the case, at least temporarily. Under the 1867 Anti-Injunction Act, judges can’t rule on challenges to federal taxes until after they’re assessed. The justices will weigh whether that applies to penalties on people who don’t have insurance.

APPOINTED BY THE HIGH COURT

ROBERT LONG

Covington & Burling

Neither side thinks it’s premature to hear the case, but the justices aren’t so sure. They’ve asked Long to argue that the 1867 law prevents them from ruling on the case until 2015, when the penalties kick in.

WHEN THE JUSTICES WANT A PERSPECTIVE BEYOND THE LITIGANTS’ ARGUMENTS, THEY APPOINT AN ATTORNEY TO MAKE THE CASE. IT HAPPENS ABOUT ONCE A YEAR

Can I get a seat?

Good luck.

The courtroom maxes out at about 500 people. Court employees, participants, and media will fill most of the seats. During Bush v. Gore in 2000, 121 journalists packed the court. That leaves 50 seats for ordinary folk who want to stay for a whole session. Others will be herded through to watch 3- to 5-minute snippets.

DAY 2

02:00:00

The individual mandate will be the hot topic on March 27. The administration will argue that because Congress can regulate interstate commerce and the health-care business crosses state lines, the federal government can require insurance coverage. Twenty-six Republican-controlled states and the National Federation of Independent Business are challenging that claim.

DONALD VERRILLI

U.S. Solicitor General

Argues for the Obama administration

• As special counsel to President Clinton, worked on Justice Stephen Breyer’s confirmation

• Representing the music industry in 2005, he won a Supreme Court decision that forced Grokster, a file-sharing network, to shut down

PAUL CLEMENT

Bancroft

Argues for the 26 states that oppose the law

• Worked alongside Obama on the Harvard Law Review

• Argued seven high court cases in 2011-12, more than any other private lawyer in decades

• Charges up to $1,020 an hour; took this case for $250,000

The legal precedents

The states point to U.S. v. Lopez, a 1995 case in which the court ruled that Congress can’t regulate gun possession near schools under the commerce clause.

The administration is citing Gonzales v. Raich, a 2005 ruling that said the federal government can prosecute people for using medical marijuana even if they, or it, didn’t cross state lines.

Will we see footage of the arguments?

Unlikely. The justices have never allowed video, saying lawyers might be tempted to play to the cameras. The court typically releases audio after the arguments end.

DAY 3

02:30:00

PART 1

90 minutes

The first order of business: If the mandate gets tossed, what happens to the rest of the law?

PART 2

60 minutes

The law lets the federal government withhold Medicaid funding if states don’t expand coverage for the poor. The last set of arguments centers on whether that’s unlawful coercion.

APPOINTED BY THE HIGH COURT

BARTOW FARR

Farr & Taranto

The states think the whole law needs to go. The administration says if the mandate goes, other (but not all) provisions should go, too. Farr will press the court to leave the rest of the law alone if it strikes down the mandate.

The closest historical parallel

In 1935 and ’36 the court voided major parts of Franklin D. Roosevelt’s New Deal, including a law meant to stimulate the economy by letting industries fix prices. In 1937, after his reelection, Roosevelt proposed adding six justices to the bench, which would have put the conservatives who thwarted him in the minority. That plan didn’t fly. The court began ruling in Roosevelt’s favor anyway.

When will the court rule?

On major cases, the judges tend to labor over their written opinions until right before the term ends. Mark your calendar for the last week of June.

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