The clock is running down on the Supreme Court’s announcement of its opinion on whether the Patient Protection and Affordable Care Act–the new health care law–is constitutional in its present form.
The High Court almost always files a definitive opinion before the end of its term in June, but it’s not required to do so. In fact, to put it layman’s language, the Court can “Do what it wants.” In other words, the justices make their own rules, and they’re not even bound by those. They could hold over a case like this one to the next term–or to the next 100 terms if they wanted to. They could also require the case to be re-argued–even after an unprecedented three days of argument last March. (Which I attended, by the way.)
People have asked me if I’ve heard anything from inside the Court. The answer is: No. If there’s anything true about the Supreme Court, its justices, and its other personnel, are very–VERY–tight-lipped. They do not leak–like other branches of the federal government routinely do.
The other questions I get: Can I tell anything from the arguments I heard in March? Well, there were an overwhelming number of skeptical questions asked particularly of the Solicitor General–the President’s lawyer–who had one of the worst argument performances I had ever seen.
(Just as an aside: The Supreme Court is an appeals court–in fact, the highest appeals court in the land–which means there are not “trials” in its courtroom. The only thing that happens is lawyers in the case speak for or against the matter in front of the justices. Most of the justices’ decision making is based on written documents, called briefs, that are filed with the Court ahead of time. By the time the scheduled “oral arguments” take place, the justices have already made up their minds. Still, everything is in play until the opinions are actually released. No advance notice of those releases is ever made, although sometimes we can tell a big one is about to come down by simply watching the goings on at the Court, including increased security measures.)
Seasoned court analysts have told me it doesn’t look good for the law. (For the President’s side of the argument, that is.) Measuring the number and type of questions asked of the lawyers in the case, and comparing that to the outcomes in similar cases, comes up with a likely “no-go” decision by Justice Kennedy, the fulcrum of the Court. No one ever quite knows which direction Justice Kennedy may go because he doesn’t lean ideologically in one direction or the other.
The case could, of course, come down today at 10:00 AM ET, or it could come down next week. Of course, it could be one of those flukes and not come down at all. But, if things go as usual, it will be handed out the door of the Clerk’s office today or next Monday. The Court could follow generally one of three paths: It could strike down the law as unconstitutional, which means the President and Congress would have to start all over again with a new law. It could strike down in part and uphold in part, which means the President and Congress would need to figure out how to fund and enforce a very different law than the one they passed. Or, they could simply uphold the law as it is, and everything moves forward.
I’m traveling out on the west coast for the next two weeks, but I have my team posted and ready to snatch the decision at the Court building as soon as it comes down. Our legal advisers will then analyze it and we’ll do our best to interpret its implications for all of us.
The one big deal for us is what to do if the entirety of the law is upheld. First, we will urge churches, pastors, and Christians everywhere to speak up loudly on the portions of it that violate our rights of conscience, our religious liberty, and our constitutionally protected rights. For me, this has been a painful exercise, because I care deeply about those who, for reasons not of their own making, cannot afford or access health care. Out of Love for Neighbor, one of Christ’s Two Great Commandments, I feel obligated to be concerned about the plight of those who cannot afford proper health insurance. Something must be done for them. Sadly, the present law poisons that good will by forcing every American citizen to violate their most deeply held convictions. That’s utterly untenable.
Should the Supreme Court uphold the law, many of us will be forced to take a conscientious stand against it and refuse to cooperate, regardless of the consequences.
Should the Court do something else with the law, we will need to pray and work hard for something different that meets the true and urgent needs of all citizens, preserves the high quality of health care our nation has been blessed with, and protects the rights of conscience, religious freedom, and constitutional guarantees that make America unique.
“Watch and pray that you may not enter into temptation. The spirit indeed is willing, but the flesh is weak.” — Matthew 26:41