OTR Interviews

'ObamaCare' and the Supreme Court: An inside look at what's next

Former Supreme Court clerk gives insight on the justices and what's next in the decision-making process in the health care reform law challenge

 

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?

(BEGIN AUDIO CLIP)

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?

(END AUDIO CLIP)

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?

(BEGIN AUDIO CLIP)

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.

(END AUDIO CLIP)

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.

CHRISTOPHER WALKER, FORMER CLERK FOR JUSTICE KENNEDY: Great. Great to be here.

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.

VAN SUSTEREN: Does it ever happen that it doesn't get done since (INAUDIBLE) short timeline, that it gets kicked over to the next term?

WALKER: Not that I know of. Several years ago, Citizens United was a case that was re-argued the next term. So it -- the Justices decided to add a question onto the case, and so it wasn't decided until the next term. But as far as I know, the cases are all delivered by end of June.

VAN SUSTEREN: All right, let's assume that by May 15th, they have the majority opinion as written. It then gets literally passed around to all the other Justices to look at it?

WALKER: That's right, including those that don't agree. And at that point, those that don't agree, one of them will begin writing the dissent or the disagreeing opinion.

VAN SUSTEREN: All right. Suppose that someone doesn't like the majority opinion that's being written. Does another Justice make a stop in on the other Justice and say, you know, I think we should look at it another way? I mean, is there still some deliberative process that way?

WALKER: Oh, for sure. There are different ways. Sometimes, it's a writing memo saying, you know, I think your opinion's great, but you need to change these five things in order to get me to join. Other times, there might be conversations between the Justices and the clerks in order to iron out the differences.

VAN SUSTEREN: Is it always pleasant and happy at the Supreme Court, or is there the passion that we see in ordinary life among Justices and clerks about these things?

WALKER: I found the Justices to be quite collegial. Sometimes, the clerks get a little bit more excited. But I always found the Justices to be quite collegial with each other.

VAN SUSTEREN: And then at some point down the road, probably even the last day of June, work day, there will be a reading of the opinion (INAUDIBLE) make the announcement.

WALKER: That's right.

VAN SUSTEREN: And if someone's really unhappy with the majority opinion, if someone's dissented, that person, if the person's particularly -- you can tell that because the person actually reads the dissent from the bench.

WALKER: Perhaps, yes. If there's a Justice that wants to read a dissent that feels particularly passionate about an issue in the case, then that Justice can read the dissent from the bench.

VAN SUSTEREN: But there are never any leaks. Always careful, keep everything quiet. We're not going to hear anything, right?

WALKER: It's a pretty -- pretty tight ship over there.

VAN SUSTEREN: Indeed, it is. Chris, thank you.

WALKER: Great.