Posted: 4:31 pm Wednesday, March 4th, 2015

Inside the Supreme Court health arguments 

By Jamie Dupree

The arguments are over in the latest legal challenge to the Obama health law, and now we may wait until the end of June to find out the decision of the U.S. Supreme Court on whether subsidies can be offered only through state-based health exchanges, and not through healthcare.gov.

The legal back and forth that I heard on Wednesday was very familiar – taking me back to the three days of arguments held in 2012, again showcasing the deep political divide over the Obama health law in both the Congress and the U.S. Supreme Court.

Often I am asked about what it’s like to cover the U.S. Supreme Court, so how about I pull back the curtain a bit from inside the Court.

8:30 am – I walk out of the Capitol on a cool, damp morning and head across the street to the U.S. Supreme Court. There are demonstrators, but it’s not a big scene, as the line for the public stretches down the street.

8:35 am – I have a big, big smile on my face as I walk across the marble plaza of the U.S. Supreme Court. It’s hard to describe, but I still get excited about my job, even after covering politics as a reporter in Washington, D.C. since 1986.

8:40 am – The security line is a bit slow as the metal detectors seem to be on high today. Solicitor General Donald Verrilli is ahead of me in line. He’s hoping to have a much better day before the U.S. Supreme Court than his initial appearance in 2012.

8:45 am – I’m all checked in – I will have seat G-16 inside the Supreme Court press section. The Press Room is jammed with familiar faces. “It’s a full house in here,” one reporter says with a smile.

8:50 am – I decide to stand outside the door to the press room; the hallways are jammed with people waiting to get in to the courtroom as members of Congress arrive for their VIP seats.

9:00 am – Because no electronics are allowed in the courtroom, I feel like I’m on a plane with no internet. No phone to check. No emails arriving. No Twitter. No nothing. It feels nice.

9:01 am – Uh, oh. Super Supreme Court Security Guy is back for 2015. “Ladies and gentleman, listen up!” he yells to dozens waiting to get into the courtroom. “Keep your voices down; this is a working building!”

9:04 am – Those in the “H” seats are told to assemble in the hallway. They will be in the back of three rows on the side of the Supreme Court chamber.

9:05 am – Some of the sketch artists leave for the courtroom, carrying their tackle boxes filled with drawing instruments and large slabs of sketch pads. No television in the Supreme Court, so they’re still employed.

9:07 am – Reporters trying to game out what happens if the Supreme Court were to rule against the Obama Administration. “So, if this goes down in late June…”

9:10 am – The “G” seats are told to assemble, and we line up in the hallway outside the Supreme Court Press Room like we are waiting to get on a Southwest Airlines flight. Please don’t let me have a super-sized person next to me. Please. Don’t.

9:11 am – One reporter darts back to the Press Room to get rid of her illegal candy bar.

9:13 am – As we start up the stairs to the security line, Rep. Xavier Becerra (D-CA) walks up; a few minutes later, Rep. Nancy Pelosi (D-CA) shows up as well for the arguments.

9:25 am – Everything comes out of your pockets like you are going on a plane, and yet most people still set off the metal detector. Finally we go in to our seats along the left side of the room, but behind a series of giant marble pillars, not really “inside” the courtroom.

9:30 am – I’m in my seat. I’m squished. I’m squashed. I’m never this close to my wife. The guy next to me is shoulder to shoulder and thigh to thigh with me. I’m trying not to spill into the lap of the young woman next to me.

9:32 am – The public radio reporter next to me leans forward, I lean back. He leans back, I lean forward. We repeat this for the next two hours in order to maintain our personal sanity.

9:33 am – I think of how to describe how small the chairs are for the press at the U.S. Supreme Court. The seat is about the size of a kid’s tennis racket from the 1960’s.

9:35 am – Unlike three years ago for the three days of the Obama health care arguments, no one in the press area has started babbling about how big their butt is.

9:38 am – What can I see? Not much. There is a giant marble pillar four feet in front of me, covered by velvet curtains and a golden rope. Through the decorative gate that separates the press from the main courtroom, I can see three chairs for the Justices. Barely.

9:41 am – We spend time peering through the small holes in the ceremonial gate (for the lack of a better term) which separates us from the main courtroom. Through the holes that are adorned with acorns, we can pick out a few lawmakers and others in the room.

9:44 am – I always wonder what the Justices are doing in the back as they don their robes and get ready to go. Are they giving rousing speeches to get fired up? Are they just playing Supreme Court solitaire on their computers? Playing some wild and violent video games? Buying legal souvenirs on Ebay?

9:48 am – My neighbor: “I’ve got a two judge view.” Through the acorns, I can see the seats of the Chief Justice and Justice Kennedy.

9:49 am – Another neighbor: “I feel like I’m in a synagogue.”

9:50 am – The big shots in the press corps start filing in. Robert Pear of the New York Times sits in F13, and just in front of me in F16 is my radio colleague Barry Bagnato of CBS.

9:52 am – Evidently kids today only use their cell phones to tell time, as one of the other reporters asks me what time it is. “You’re the only one with a real watch,” he says. I feel old.

9:55 am – The five minute buzzer goes off. We can hear the voice of a court official speaking to the crowd about what’s going to go on, but not much else through the Acorn Gate. I’m sweating. And there’s about 90 minutes to go.

9:56 am – “This gives new meaning to being penned in,” the guy next to me says as we lean forward and lean back, again and again.

10:00 am – “Oyez, oyez, oyez.” The United States Supreme Court is in session, but we can’t really see it from our vantage point.

10:01 am – Instead of starting with arguments on the health law, the Supreme Court issues one ruling, as Justice Scalia gives the opinion in a railroad tax case involving Alabama. “We reverse the 11th Circuit.”

10:06 am – More regular business as the Supreme Court admits lawyers to its bar. One man notes that he is presenting his son, and the crowd gives a collective “awwww” in appreciation.

10:09 am – Toe meets leather. We are underway.

10:09 am – Lawyer Michael Carvin can hardly get a few words out when Justice Ginsburg interrupts and starts pestering him with questions about whether the plaintiffs have standing to bring this case. She does not back off and keeps going for a few minutes.

10:12 am – Next up in the batter’s box is Justice Stephen Breyer, who also tears into Carvin’s arguments, as they go back and forth about the meaning of sections 1311 and 1321 of the health law. “So, what’s the problem?” Breyer says at one point.

10:15 am – Now up, Justice Elena Kagan, who takes Carvin into a hypothetical about her three law clerks and their responsibility for writing a memo, linking it to how the health law was written. Carvin doesn’t miss a beat in his answer. “You run a different shop than I do,” Kagan says to laughter in the court.

10:18 am – Kagan gets serious about the issue at hand, whether one phrase means subsidies can only go through the state exchanges: “It’s the whole statute and the context,” she says.

10:19 am – Breyer says the battle over the bill text is a question of “connotation or denotation.” It makes me remember that my 9th grade English teacher told me that I should not get into journalism because of my somewhat average English SAT scores.

10:23 am – Justice Sonia Sotomayor uses her first real part of the arguments to make more of a political statement about what happens if the subidies are struck down; “We’re going to have a death spiral,” she says.

10:25 am – Finally. Justice Kennedy speaks. I immediately put three stars next to his name in my notes, as he raises the issue of what happens to the health law if subsidies can’t be offered to some. “Under your argument, there’s a serious constitutional issue,” Kennedy says, hinting seemingly that the entire law could fall if the subsidies are struck down.

10:26 am – After Justice Scalia chimes in, Kennedy makes sure everyone heard him. “Your argument raises a serious constitutional question,” he tells attorney Michael Carvin. I wonder what that means when it comes to Kennedy’s vote.

10:28 am – Kennedy references South Dakota v. Dole, back when the Reagan Administration used a highway bill to influence states to raise their drinking ages. I smile, remembering that case from 1987.

10:29 am – Justice Kagan returns, throwing quotes back at Carvin from the arguments on this case three years ago, accusing him of changing his arguments to suit the situation. She also expresses her disgust at the entire legal situation, referring to the attacks on the health law as “this never ending saga.”

10:33 am – Justices Ginsburg, Kagan and Sotomayor all press Carvin repeatedly on his past statements and this case; at one point, the Chief Justice steps in to call on Ginsburg, as all three are pressing to ask another question.

10:34 am – The Chief Justice gets a big laugh after repeated questions to Carvin on his past statements; “Did you win that other case?” Roberts asks, drawing chuckles from those in attendance who know the story of his own vote as well.

10:35 am – As many had expected, Chief Justice Roberts gives Carvin extra time, which means ten more minutes for both him and for the Solicitor General as well. Roberts likes to extend time on major cases for additional argument.

10:48 am – Carvin wraps up his initial argument, sparring again with Justice Kagan over the meaning of the “established by the State” phrase. “We look at the whole text,” Kagan says. “We don’t look at four words.”

10:49 am – Solicitor General Donald Verrilli begins; his voice does not crap out on him like it did three years ago, as he starts by addressing the concerns of Justice Ginsburg on the standing of those bringing the lawsuit.

10:50 am – The Chief Justice sounds a somewhat aggravated tone as he asks, “You’re surely not raising the standing question?” asking if the Justices should hold a trial to figure out whether those suing are allowed to bring this action.

10:51 am – While Verrilli says he is not pushing the standing question, he repeatedly makes clear that it’s not known if any of the four plaintiffs would be subject to the individual mandate tax penalty for 2014 or 2015. If not, he says the suit should fall.

10:53 am – Justice Sotomayor pursues that, as she again segues into statements that sound more like a political argument across the street in Congress, making the case that striking down the subsidies “spurs a death spiral in the exchanges.”

10:56 am – Justice Scalia presses the Solicitor General on the idea of, what if the Congress just wrote a bad law? “Every statute must make sense?” Scalia asks.

11:02 am – Justice Alito floats an idea, to have the Supreme Court strike down the subsidies through the federal exchange, but stay that ruling until the end of the year to give the states and the Congress time to figure out how to fix the problem. Verrilli says that is “completely unralistic.”

11:04 am – Scalia pursues that, arguing that the Congress will act if the subsidies are struck down. Verrilli deadpans: “This Congress?” The crowd roars with laughter.

11:06 am – Scalia keeps after the issue, making clear that it’s not the job of the Supreme Court to clean up after the Congress when lawmakers write law badly. “This is not the most elegantly drafted statute,” Scalia says.

11:10 am – Justice Alito keeps asking Verrilli about why the health law used the “established by the State” phrase. “Why not, established under the Act, or established by HHS?” Alito asks.

11:15 am – The back and forth over what phrase should have been used goes on for a few more minutes, as Scalia raps the “gobbledygook” in the health law. “That’s not gobbledygook, Justice Scalia,” Verrilli says flatly, as they debate the differences between sections 1311 and 1321.

11:18 am – Unlike his utterly disastrous performance three years ago before the Justices, Verrilli is on his game today, as he rattles off points about the arguments of the plaintiffs. “I think they’re wrong about each one,” he says. “They’re just wrong about that, just completely wrong.”

11:22 am – In the final few minutes of his presentation, the Solicitor General spars with the Chief Justice over “Chevron deference” and the power of federal agencies to regulate. “The statute has to be taken as a whole,” Verrilli says. The Chief Justice didn’t say much, but this is an important issue regarding the ability of the Executive Branch to issue regulations – that the Obama Administration could do one thing now, and another administration could change it later.

11:26 am – Michael Carvin stands up for his final four minutes of argument. He first addresses the standing issue and says his plaintiffs will have to pay a tax penalty for both 2014 and 2015; he takes a subtle jab at the Solicitor General, saying the burden of proof is on the government to raise this issue, not him to set out the details.

11:27 am – I’m spending most of the final few minutes jotting down notes about what I want to say when I get on the air.

11:30 am – “The case is submitted,” says the Chief Justice. And that is that.

11:30 am – We quickly file out of the press section. Most of the reporters go back to the Press Room to claim their belongings. I have brought nothing with me other than my pen and notepad, so I head for the front door.

11:31 am – I emerge at the top of the stairs of the U.S. Supreme Court building, looking down on the demonstrators and the news media waiting below. Other than a security aide, I’m the first person out the door, and you can see the still photographers shift into their positions, realizing the arguments have just ended.

11:32 am – I grab my camera that I have stashed with a cameraman from our television bureau. He hits the record button and I babble for 90 seconds about what just happened inside.

11:36 am – I’m supposed to be on the radio by now, but I’m waiting at the stoplight across the street from the Capitol. I start running to the building, but I slow down as I approach the stairs, not wanting to be seen as a security risk. I waive my press pass and the police officer armed with the high powered weapon smiles.

11:39 am – Inside through the Senate Carriage entrance I go, then up the elevator to my booth in the attic of the Senate side of the Capitol. Too much running, so I’m sort of out of breath on the air, but not out of breath like CBS’s Rita Braver after the Webster decision in 1989.

A few hours later, I was in the U.S. Senate chamber for a veto override vote on the Keystone XL oil pipeline. It’s not every day you get to cover a Supreme Court argument and a veto override.