As has been widely reported, President Obama clearly misspoke when he claimed that it would be "unprecedented" for the Supreme Court to strike down a major piece of legislation – in this case, Obamacare. The high court has struck down many laws and regulations found inconsistent with the Constitution. Indeed, the Justice Department admitted as much in a memo released late last week.
Giving the President the benefit of the doubt, he likely meant to say that it would be unprecedented for the Court to strike down a bill of great magnitude. Many would consider that, too, to be inaccurate, but at least it would be arguable.
Some pundits on the right side of the spectrum believe the President already
knows how the justices voted, and that one of the more liberal justices has "tipped off" administration officials that the law is going to be thrown out.
Such an action by a member of the Court would be highly unusual – if not "unprecedented." If ever proven, Congress might see fit to impeach the justice for breaching the tradition of silence.
This occasion offers us a chance to talk a little about how appellate courts operate and why confidentiality is critical to the integrity of the process.
When parties take a case on appeal, they give the court information. First, they provide the court with a copy of the record; that is, everything that happened in the court below. If the lower case was a trial, the appellate court gets a transcript of all the testimony, the items of evidence, and all the legal briefs submitted by the lawyers. Then, the lawyers submit legal briefs that spell out why their side believes that the lower court's decision should be upheld or reversed, depending on what side of the case they are on. After reviewing all this information, the appellate court does its own research into legal precedent to test the accuracy of the arguments made on both sides.
In the case of Obamacare, the Supreme Court is reviewing a lawsuit that
challenges the constitutionality of a federal statute. Those kinds of cases ordinarily do not involve "evidence" per se; rather, the appellate court relies mainly on the legal briefs submitted by the parties, pro and con.
Before the attorneys argue the appeal in open court, the justices and their law clerks usually read all the briefs. Sometimes, internal memos are prepared by staff listing important points that should be addressed at oral argument.
At oral argument, the justices ask the attorneys questions about the points raised in the legal briefs. The attorneys generally stand before the justices with
a prepared argument, but rarely do they ever get to make all their points, as the justices are free to ask whatever they want and occupy as much of the allotted time as they see fit.
About 10 years ago, two colleagues and I took a case to the Supreme Court. I was incredibly impressed how well informed and prepared the justices were about our case. We were able to make most of our points during oral argument,
but not all of them. And when the red light came on to tell us we were done – we were done.
Once the case is argued, the justices retire to a private room and they talk about what they just heard. Usually, a preliminary vote is taken then and there.
Sometimes subsequent meetings are held. In any event, if and when a vote is
finalized, the most senior justice on each side of the position assigns a justice to
write the draft opinion for that particular side. The draft opinions are circulated
a few weeks later and eventually, the opinions of the majority and the minority
(any justices in "dissent") are finalized and sent to the printer.
Throughout this process, security is paramount. The only people that know – or
should know – how the issues have been decided are the justices, their law clerks (although some appellate courts keep them somewhat in the dark) and staff with a need-to-know (typists, citation-checkers and so forth). All of these people, when hired, swear under oath to follow a strict code of silence.
Security is critical for several reasons.
One, it is important that the justices be given adequate time to flush our their views, pro and con, without the public knowing how they feel. Justices might be subject to improper influence or public pressure if their preliminary views were known.
Two, some justices take a great deal of time to finalize their views; sometimes, in the exchange of draft briefs, one justice or another might change his or her view. Such an occurrence would be unlikely if preliminary votes were made known to the public before opinions were published.
Three, even though many cases are decided along seemingly partisan lines, it is nonetheless critical that the public see the Court speak with one voice, at one time. Were individual justices to speak out, or publish their views according to their own schedule, the public's confidence in the integrity of the process would be shaken.
Some 26 years ago, my law partner and I were privileged to serve as law clerks to the State Supreme Court justice in Rhode Island. We took the oath of silence, as did all our fellow clerks. Inside the locked offices, we spoke freely about the cases and had passionate discussions about the pros and cons of the arguments before us. Outside the court, we said nothing – not to our parents, friends, or significant others. It was, for many of us, the first opportunity we had as lawyers to learn how to keep a secret. I cannot recall ever hearing of the code
being breached – not once.
Is it possible that someone inside the Supreme Court has dropped the dime on the Court's vote in the Obamacare case? Of course it is possible. Am I naïve thinking such a thing did not or would not happen here? Perhaps. But my experience with a state appellate court, and my respect for the quality of individual that serves on the Supreme Court, lead me to conclude that there was no leak in this case. When the opinions finally are published, all Americans will learn of the outcome at the same time.