The storm that erupted yesterday when Barack Obama woke up and discovered the Supreme Court of the United States was not only not elected but it could overturn "duly passed" laws, even those passed in the dead of the night by the barest of purchased majorities, has been more than adequately covered on these pages and others by actual lawyers and those who think they are.
I'm pretty sure Obama knows what Marbury v. Madison is, even though yesterday he gave a darned good impression of being a total goober in regards to our Constitution. The simplest explanation is that he knows how the vote went on Friday and is working to change that vote, failing that he is setting the predicate for running against the Supreme Court in November.
When oral arguments are concluded, the Justices have to decide the case. They do so at what is known as the Justices' Conference. Two Conferences are held per week when Court is in session, on Wednesday and Friday afternoons. The Justices vote on cases heard on Mondays and Tuesdays of a given week at their Wednesday afternoon Conference. The Justices vote on cases heard on Wednesday at their Friday afternoon Conference. When Court is not in session, usually only a Friday Conference is held.
According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time—no police, law clerks, secretaries, etc. The Chief Justice calls the session to order and, as a sign of the collegial nature of the institution, all the Justices shake hands. The first order of business, typically, is to discuss the week's petitions for certiorari, i.e., deciding which cases to accept or reject.
After the petitions for certiorari are dealt with, the Justices begin to discuss the cases that were heard since their last Conference. According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have. Each Justice speaks without interruptions from the others. The Chief Justice makes the first statement, then each Justice speaks in descending order of seniority, ending with the most junior justice—the one who has served on the court for the fewest years.
When each Justice is finished speaking, the Chief Justice casts the first vote, and then each Justice in descending order of seniority does likewise until the most junior justice casts the last vote. After the votes have been tallied, the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court. The most senior justice in the dissent can assign a dissenting Justice to write the dissenting opinion.
If a Justice agrees with the outcome of the case, but not the majority's rationale for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion. When there is a tie vote, the decision of the lower Court stands. This can happen if, for some reason, any of the nine Justices is not participating in a case (e.g., a seat is vacant or a Justice has had to recuse).
Based on this we know the three Obamacare-related cases were voted on at the Friday afternoon conference. What happens Monday? A full-throated attack by the White House and its devoted corps of sycophants on the very idea that the Supreme Court should hear the case. Is this a coincidence? I doubt it.
If is is axiomatic that the Supreme Court reads election returns, it is also true that they read the newspapers and public opinion polls. It can't have escaped the notice of even a mediocrity like Sotomayor that 1) this is an election year and 2) Obama's political fate seems to be closely tied to the outcome of the case.
To be clear, it is difficult, if not impossible, to believe that a case of this significance to the reelection campaign of an incumbent president is going to remain secret until June. The stakes are way too high.
The first question is how, if there are no clerks, secretaries, etc., in the conference how would have the president found out about the decision... and I think the actual vote? Paradoxically, if there is a leak it is much easier to identify the source than if there were assorted support staff in the room. While support staff would have been the likely suspects they actually have much to lose and little to gain from leaking. If found out, they will lose their job. If not found out their reward will be minor. No fame. No fortune. Just the day-in-day-out knowledge that the person they leaked the information to controls their future. The people who can leak without fear are the justices themselves. If one did leak they are in no danger of losing their job and while some of their colleagues might be miffed they would, if exposed, be the toast of the town in Manhattan and Los Angeles.
(GASP... did you just insinuate a Supreme Court justice might breach the holiest of holies? Remember, my friends, we're dealing with Democrats here.)
If a leak occurred after Friday's conference, it is very easy to figure out the single justice with the requisite means, motive, and opportunity.
What I think was afoot yesterday was a blast aimed one man. The Cowardly Lion of the Supreme Court.
If the key conference vote on striking down Obamacare was 5-4, and that is what many observers are predicting based on the oral arguments, the man with the fifth vote is Anthony Kennedy. In the conference for Planned Parenthood v. Casey, Kennedy had cast the fifth vote that would have gutted Roe v. Wade. At some point during the drafting of the opinion, Kennedy got a case of the vapors and changed his vote thereby upholding Roe and ensuring another 20 million children were aborted. The Administration has probably calculated that it can bring enough heat on Kennedy via its public statements to convince him to change his vote.
And if he doesn't Obama has declared war on the Supreme Court as a tactic to energize his base.
He sort of began that during the 2010 State of the Union when he simply lied about the Citizens United case. While some have called into question Obama's wisdom in taking a whack at the Supreme Court to their face on national television as well as this week's onslaught on a yet officially undecided case, actually it is inspired.
If you've ever played/coached/officiated a sport you know that more often than not the high maintenance player or coach can win a battle of wills with the referee. The referee wants to appear fair to the players and spectators. The coach or player wants to win. If you challenge every call against you, you can eventually wear down a referee and get calls in your favor simply because they don't want the grief and they want to appear unbiased. Taken in toto, Obama's actions resemble those we'd expect from a no-talent version of John McEnroe.
The evidence, to me, seems strong that on Friday the Supreme Court voted 5-4 to toss Obamacare and the White House knows this to be the case.