As soon as the justices emerged from behind the velvet curtain at 10 a.m. this morning, clues about how the Supreme Court would rule on health care were apparent.
Justice Stephen Breyer had a broad smile on his face, while Justice Antonin Scalia looked downward morosely, as if attending a wake. But it would take a few minutes before the Obama administration's victory in the hard-fought litigation over health care decision would be apparent.
First, the Court disposed of the other two pending cases. In United States v. Alvarez, the Court struck down the Stolen Valor Act, which makes it a crime to lie about having won a military honor. Justice Anthony Kennedy announced the 6-3 ruling briefly, knowing the main attraction was yet to come. He framed it, as many expected the Court would, as a classic First Amendment case in which, holding its collective nose, the Supreme Court rules that the First Amendment must protect "speech we detest."
Then the hushed audience became even quieter, if possible, as Chief Justice John Roberts Jr. began to speak. The wildly shifting tide of speculation had finally landed on Roberts as the likely author of the health care rulings, and now the speculation seemed right. But before he got to it, Roberts brushed off the other pending case -- a business-related standing dispute called First American Financial Corp. v. Edwards -- dismissing it as improvidently granted. That likely means that in the crush of the final days of the term, the justices could not find a majority for a single position, so purged it from the docket.
Finally, at 10 after the hour, the drama began -- though Roberts read from the majority in an oddly perfunctory, hurried tone, as if his main goal was to be done with it. At first, it sounded like a loss for the Obama administration, as Roberts demolished the Commerce Clause arguments in favor of the individual mandate. But at the outset, he had mentioned the other argument Solicitor General Donald Verrilli Jr. had made, defending the penalty for not buying insurance as an exercise of the taxing power of Congress. When Roberts expanded on that point, it was clear that this is how the bargain was struck; the mandate would be upheld, but without expanding the Commerce Clause powers of Congress. Scalia's sour look persisted.
Then came the next bombshell: the justices would strike down the Medicaid expansion provision of the law. Its promise of increased funding to the states for Medicaid in exchange for expanding coverage carried a threat -- " a gun to the head," Roberts called it -- of withdrawing all Medicaid funding for states that refused to accept the expansion.
From there, it was all elaboration. Roberts said that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr. had authored a "joint dissent" -- an unusual formulation, since usually a single justice writes a dissent that is joined by others. Could it mean that the dissent started its life as the majority opinion, but lost Roberts midstream? That will be dissected in future days, but Kennedy gave no hint when he read from the dissent. Far from being judicially modest, Kennedy said, the Court had overstepped its bounds by in effect rewriting the Affordable Care Act. "It saves a statute that Congress did not write," Kennedy intoned.
Justice Ruth Bader Ginsburg spoke next, criticizing the majority's Commerce Clause analysis and its Medicaid smackdown. But in the end, she said, "The Affordable Care Act survives, largely intact."
Close to 11 a.m. the Court, looking exhausted, was ready to adjourn. But Roberts still had some official business to take care of: he offered his traditional thanks to the Supreme Court staff, and he singled out Clerk William Suter for soon reaching the milestone of 50 years in public service, first in the U.S. Army and, since 1990, as clerk of the Court. That triggered a rare burst of applause.
Roberts also thanked the Supreme Court bar for its service to the Court. It appeared that he nodded toward the embattled Solicitor General Donald Verrilli Jr. as he did so, capping a week in which Verrilli did much better than expected. Verrilli won significant victories in both the health care cases and the Arizona v. United States immigration case. By 11 a.m. the Court was done, leaving the pundits and legislators to sort out the impact of its rulings. The Court won't be on the bench again until Oct. 2.