• With: Christopher Walker, Former Clerk for Supreme Court Justice Kennedy

    This is a rush transcript from "On the Record," March 29, 2012. This copy may not be in its final form and may be updated.

    GRETA VAN SUSTEREN, FOX NEWS HOST: Tonight, the entire nation is on edge, anxiously awaiting the Supreme Court's decision on the fate of the national health care law, this week, the high court hearing three days of historic arguments, on Monday, the Justices trying to determine if -- if an obscure tax law could stop the health care case from even being heard, then on Tuesday, lawyers arguing the heart of the health care law and the source of the funding, the individual mandate. Is it constitutional or not?


    ASSOC. JUSTICE ANTONIN SCALIA, UNITED STATES SUPREME COURT: The argument here is that this also is maybe necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers, that it's supposed to be a government of limited powers, and that's what all this questioning has been about.

    What -- what is left? If the government can do this, what else can it not do?


    VAN SUSTEREN: And then Wednesday, the sizzling question -- if the Court does strike down the individual mandate, does that kill the entire health care law?


    ASSOC. JUSTICE RUTH BADER GINSBURG, UNITED STATES SUPREME COURT: It leaves a question of whether we say, Everything you did is no good, now start from scratch, or to say, yes, there are many things in this that have nothing to do, frankly, with this -- the affordable health care, and there are some that we think it's better to let Congress to decide whether it wants them in or out.

    So why shouldn't we say -- it's a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage, rather than throwing out everything.


    VAN SUSTEREN: So is the Supreme Court going to tell us their answer soon? Not exactly. Most expect we will get the word late June. And many suspect that the decision could come down to just one Justice, Justice Anthony Kennedy.

    Christopher Walker is one of Justice Kennedy's former clerks. He joins us. Nice to see you, Chris.


    VAN SUSTEREN: OK, so we've had the arguments. Those are over. It's now Thursday night. What happens tomorrow, on Friday?

    WALKER: So tomorrow, the Justices are going to conference. It's a private conference with just the Justices at which they'll cast a preliminary vote, a straw vote.

    VAN SUSTEREN: All right, now, who's there? Anyone?

    WALKER: Just the Justices, just the nine of them.

    VAN SUSTEREN: All right. So tomorrow, they'll know whether they're 5-4, 6-3, or whatever.

    WALKER: They'll at least know preliminarily whether they're 5-4 or 6- 3.

    VAN SUSTEREN: All right. Is it -- does it sometimes happen that they have their split, whatever it is tomorrow, and then later on, for some other reason, the split changes?

    WALKER: The Justices aren't locked in tomorrow. You know, after the Justices have the vote, they'll then assign the majority opinion. And the Justice and his clerks will start working away on it. And if that opinion isn't something that the other Justices want to join, there can be movement on which Justices go in which way.

    VAN SUSTEREN: Hypothetically, it takes 5-4 tomorrow, and the Chief Justice is in the majority. He then decides who's going to write the majority opinion?

    WALKER: That's correct.

    VAN SUSTEREN: OK, now, let's assume that he's not in the majority. It's 5-4. Who's going to decide who writes this opinion?

    WALKER: Whoever the most senior Justice is.

    VAN SUSTEREN: All right, so then -- so then they make that decision, whatever it is, tomorrow, the preliminary vote. And they've decided who's going to write preliminarily the majority opinion. And then what happens from there?

    WALKER: So the Justice that's writing the opinion will go back to the chambers with the clerks and talk about how to craft the opinion and go through the drafting process.

    This is a really tight timeline here. Usually, you have several months to write an opinion. Here you have about two, or less to write the first draft. And so once the Justice feels comfortable with the first draft, he'll then circulate it to the rest of the Court for comment.

    VAN SUSTEREN: When would you expect the first draft to be done? Is there actually a prescribed time period or is it not like that?

    WALKER: It's not like that. Although here, you know, you have at least four different issues. You could have four different opinions, perhaps, depending on how the votes come down on each of those issues.

    VAN SUSTEREN: I take it that in a given Supreme Court, whether it's this complement of Justices or others, that there are some clerks that are more involved in the writing and some Justices are more involved in the writing. Is that fair to say?

    WALKER: That's correct.

    VAN SUSTEREN: All right, so the opinion -- so as of tomorrow afternoon, do the clerks have an idea of how the split is, the clerks for the Justices?

    WALKER: Yes. Yes. The clerks -- usually -- each chamber is different. But usually, the Justices will go back and meet with their clerks and report how the conference went and they'll start preparing the opinions that they've been assigned.

    VAN SUSTEREN: And is there four law clerks, or law schools, they're graduated from fine law schools, there are four to each Justice?

    WALKER: That's correct.

    VAN SUSTEREN: OK. All right. So now let me bring -- let me push ahead towards June. At some point, they're going to have this final -- this final decision. Does it have to be before the end of the term?

    WALKER: If it's going to be finished this term, yes.