Inside the Supreme Court III 

Posted: 9:30 pm Wednesday, March 28th, 2012

By Jamie Dupree

As the U.S. Supreme Court wrapped up over six hours of arguments on the Obama health law on Wednesday afternoon, all sides left the courtroom without a clear idea of how the Justices might rule.

“The idea all along was to get our opportunity to present our case to the Supreme Court of the United States,” said Paul Clement, the former Bush Administration Solicitor General who represented over twenty states in this legal action.

“It would be a very significant victory, it would be a landmark decision of the Supreme Court,” Clement said about the possibility that the justices could throw out the individual mandate in the Obama health law.

It was a very interesting three days inside the courtroom, so let’s give you another close up of what it was like to be inside the court for these arguments.

8:40 – I left the Capitol and walked across the street to the Supreme Court on a chilly and breezy morning; once again there weren’t that many demonstrators outside the Court.

8:45 – No lines again at the metal detectors to get inside the building, as I zip my way up to the press room.

8:51 – I’m clearly the high school nerd as I’m the only reporter standing in the hallway waiting to be escorted up to the courtroom.

8:53 – A few more reporters arrive; always very interesting to listen in on the legal musings of my colleagues. It is a reminder that we all cover the same events but pull out different threads.

8:55 – Phew. I’m evidently not the creepy old guy as I get a hearty good morning from the 20-something who leads us up to our seats in the courtroom.

8:56 – I wonder how many reporters will skip this final day. “Yesterday was the big one,” says one of the Court’s public information officers.

8:58 – Barry Bagnato of CBS Radio tells me he’s heard about my Supreme Court blog. He’s one of the regulars here and his view is mainly of a marble pillar.

9:02 – “I’m going to ask for one of those high backed chairs the justices have,” cracks one reporter in line.

9:05 – Last chance to hit the bathroom before we go into the courtroom.

9:10 – I’m in my seat, the same one each day. Unlike the first two days, the security people are really antsy and telling us to sit down.

9:12 – Oh boy, the heat is steaming out of the floor register underneath me. Good thing I’m wearing a summer cotton suit again, though my back may spontaneously combust at some point.

9:13 – “The seats may be lousy, but when the decision comes down, I can say that I was here,” says one of my neighbors.

9:15 – Health and Human Services Secretary Sebelius is here again today; she sits down by herself in the first row.

9:17 – “I should be a lawyer so I could get a better seat,” says one young reporter in for her first day of coverage this week.

9:19 – The security guy keeps telling us to sit down and we keep ignoring him. I have found over the years that police and security people just don’t understand that journalists are a different breed. We are not sheep.

9:21 – My next door neighbor is dutifully reading briefs on this case.

9:22 – The security crackdown continues.

9:23 – “I’m telling you to sit down,” says Super Security Guy. “We didn’t have to sit down yesterday,” one reporter replies without moving an inch. “This is today,” says the SSG, who looks like he wouldn’t think twice about administering a wooden shampoo to any of us.

9:24 – There is nothing that can unite the press corps more than being pushed around by police/security/secret service. I am watching it play out right now yet again.

9:25 – I’m not sure a jean-type jacket really qualifies as proper attire for the Supreme Court, but that’s what one guy has arrived in.

9:26 – Super Security Guy is back, standing in front of us like we are animals in a cage who aren’t getting any food today because we misbehaved.

9:27 – “You moved up!” says Lyle Denniston of scotusblog.com to one of his colleagues, who has inched his way into the courtroom from the cheap seats where I sit.

9:29 – “Mr. Train Wreck” arrives – that would be Jeffrey Toobin of CNN, who suddenly seemed to realize on Tuesday that there was a chance the legal challenge to the Obama health law might actually succeed.

9:31 – There are three women reporters right in front of me today; they fit on the three chairs so much better than the three men who were there the first two days.

9:32 – CNN’s Kate Bolduan is standing up in the courtroom to scan for VIP’s; good thing Super Security Guy hasn’t spotted her.

9:33 – The woman in my row with butt-size issues is back today, but there is no mention of the posterior troubles yet.

9:35 – Jeffrey Toobin and others earn the wrath of Super Security Guy and are ordered to sit down immediately.

9:36 – One of my colleagues has decided that it’s nap time.

9:37 – The German radio reporter isn’t here today, so we will have to improvise a new system for identifying some of the justices as they speak.

9:38 – Uh oh. Super Security Guy cracks down again, telling five recent reporter arrivals to sit down. None of them do it. He asks again. They ignore him again.

9:39 – I pat my back with my hand to make sure there aren’t flames.

9:41 – Hampton Pierson of CNBC arrives fashionably late and squeezes down my row, interrupting the sleep patterns of one of my neighbors.

9:42 – A court employee tells everyone to be quiet, and amazingly, things do get quiet.

9:43 – I’m wondering if a majority of justices are in the back battling in a multi-player video game. “I got you that time, Chiefy!”

9:45 – We check the list of counsel and the Solicitor General is back. We all hope he has a better day today.

9:47 – One woman down my row has the same exact theory as my wife, that the Solicitor General was having a bad allergy day on Tuesday.

9:49 – I count about seven empty seats in the press section.

9:50 – With Super Security Guy around the corner, I stand up for about 10 seconds to look for VIP’s out in the courtroom.

9:51 – I’m struck again by how many legal experts scoffed at the idea that any of these lawsuits would ever work against the Obama health law. Yet we seem to be on the verge of actually having the individual mandate get struck down.

9:53 – The room grows quiet. My neighbor is asleep again.

9:54 – The 5-minute warning buzzer goes off a minute early.

9:55 – The seat next to me is empty. I am so happy.

9:57 – Super Security Guy gives us one last glare. The room is dead silent.

9:59 – “One minute to play in the period.”

10:00 – “Oyez, oyez, oyez.”

10:01 – Instead of starting the arguments, the court has opinions to deliver. Ugh. Justice Alito goes first.

10:04 – There’s a shocker – the Supreme Court reverses the 9th Circuit.

10:05 – Now Justice Ginsburg gets her turn for a decision.

10:09 – Ginsburg sounds like she is reading the entire syllabus.

10:11 – Another decision. Justice Scalia gets this one. He sounds like he is enjoying the presentation.

10:15 – I dream of having a Supreme Court Tivo so I can speed through this part.

10:17 – Scalia gets a big laugh in the courtroom by repeating a Latin saying a few times.

10:20 – Toe Meets Leather. We are finally underway.

10:20 – “Mr. Chief Justice, and may it please the Court: If the individual mandate is unconstitutional, then the rest of the Act cannot stand,” says Paul Clement, the lawyer for the states suing the federal government.

10:21 – After the conservatives dominated the early going on Tuesday, Justice Sotomayor gets in the first questions on Wednesday, as she dominates the early going by sparring with Clement.

 

10:25 – Big laughs in the courtroom as Justice Scalia rags on the “Cornhusker Kickback” which won the vote of Sen. Ben Nelson (D-NE), saying it violates “the constitutional proscription of venality.”

10:28 – Justice Kagan makes the argument that if the individual mandate is struck down, it doesn’t mean the whole bill should fall. “And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf?”

10:30 – Justice Ginsburg backs up Kagan and Sotomayor by knocking the idea of striking down the whole bill: “So why should we say, it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job.”

10:33 – Justice Kennedy gets into the mix and makes reporters wonder where he is on striking down the whole bill, “I’m still not sure, what is the test,” Kennedy asks.

10:35 – Kennedy keeps pestering Clement about where to draw the line on how to cleave the health law. It makes us wonder where the court’s swing vote is going.

10:39 – A big mention for Buckley v Valeo; can’t imagine how many times I heard about that case in my early years as a reporter.

10:40 – I decide to actually look at the bench, and suddenly Justice Breyer is holding up two big chunks of the health bill, talking about what parts might be jettisoned by the court. “What do you suggest we do?”

10:44 – Huge laughs in the courtroom when Clement suggests that the Congress could approve non-controversial items in the health law “in a couple of days, it won’t be a big deal.”

10:45 – A day after his boss stubbed his toe, Deputy Solicitor General Ed Kneedler was in the hot seat; “the minimum coverage provision is fully consistent with Article I of the Constitution.”

10:46 – Chief Justice Roberts doesn’t exactly serve up a hanging curveball to Kneedler; “How does your proposal actually work?”

10:52 – Scalia is starting to get on a roll. “One way or another, Congress is going to have to reconsider this.”

10:54 – Justice Kennedy argues that if the Court picks and chooses what survives in the health law, that would be judicial activism, calling it “a more extreme exercise of judicial power than to strike” down the whole bill. It again makes us wonder what Kennedy will do.

10:56 – More humor from Scalia, as he suggests it would amount to “cruel and unusual punishment” for the court to figure out what exactly survives in the health law; “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?”

10:57 – Justice Kagan gets in yet another dig at the Congress, referring to the “complex parliamentary shenanigans” that go on across the street.

10:58 – The Chief Justice again makes clear he’s not buying the government’s argument. He doesn’t look like a fifth vote to me.

11:01 – Kennedy makes us wonder if he really is ready to throw out the whole bill, saying for the court to pick and choose what survives, “isn’t this an awesome exercise of judicial power?”

11:05 – This is what I love about the Supreme Court – both sides are using the same court case (Booker) to bolster their arguments today.

11:09 – I realize that this is the third straight day in which I have gone for over three hours without drinking any water or a bathroom break. That might be an Eighth Amendment violation to treat reporters that way.

11:15 – I look up suddenly to see Super Security Guy rubbing his hands together like he’s about to yank one of us out of our seats for a little test of Chemical Billy.

11:23 – Yet another Massachusetts health law shout out. Lucky for Mitt Romney that there was real news the last couple of days or he might have been dragged into this.

11:27 – A woman reporter down the row suddenly gets up and hands me a folded up piece of paper. It’s a note asking who was just speaking (and not a note asking me out for a beer). Good thing she doesn’t know I was blogging about her butt the last few days.

11:35 – Radio news wars! Stephen Portnoy of ABC heads for the exit. Thirty seconds later, Jared Halpern of Fox follows.

11:38 – Scalia finally gets his best sound bite: “My approach would say if you take the heart out of the statute, the statute’s gone.”

11:43 – Breyer still trying to make the case for saving the health law: “Do you want to make an argument in that respect, that destroying the heart of the bill does not blow up the entire bill; it blows up the heart of a bill?”

11:44 – Another dig at the Legislative Branch, this time from Justice Kennedy during a discussion of what Congress would do on health care. “Is that the real Congress or a hypothetical Congress?” Kennedy says to gales of laughter.

11:45 – Breyer speaks the truth: “I would say stay out of politics. That’s for Congress; not us.”

11:48 – Before wrapping up his presentation, Clement used “Potemkin” and “halfway house” in his final summary.

11:51 – I race out the door and down the steps. This time I make the light at First Street and hustle over to the TV cameras on the lawn in front of the Capitol. I shoot a video in one take on what I saw in the Court and run inside to do my radio spot on the Neal Boortz show.

12:04 – I take a deep breath before going on the air. This is fun stuff.