The sidewalk in front of the Supreme Court looked a bit like a carnival Thursday morning, as competing chants rang out.
“Hey, hey, ho, ho. Obamacare has got to go!” was one cry.
A man in a Revolutionary War hat waved a sign that said, “Don’t Tread on Me.”
And in front of a placard that said “Medicare for All,” a couple of women dressed as belly dancers moved to the sound of a reedy trumpet.
But inside the Supreme Court building, it was all business. This is an efficient operation with its own police force, café, and gift shop. About 160 lucky Americans, many of whom had waited outside all night to hear the historic ruling on health-care reform, were finally allowed in and were now standing in single file in a corridor. They’d been issued orange admission cards stamped with their place in line.
The first on line was Carol Anderson, a blonde woman who says she works as a researcher for a living and believed the law “will force Catholics to go against their conscience.” She had tucked her admissions card, stamped with the number one, into a framed picture of the Virgin Mary. She said she got to courthouse at 12:30 PM yesterday: “Some kind reporter from CBS lent me his folding chair. When you hit 50 and you don’t get sleep, it affects you more then when you are 20.”
Behind her, with admissions card No. 2, stood Laura Brennaman, a registered nurse who had flown in from Ft. Myers, Fla., an ardent supporter of the bill. Though Brennaman and Anderson hold opposing views on the Affordable Care Act, they barely discussed it for the 20 hours they sat next to each other. Brennaman says she’d waited in relative comfort. “I brought a little camping folding chair,” she said. “It reclines. I probably slept a total of an hour last night. But I can sleep on the plane back. And I brought some trail mix and some tuna fish in a can. I’m good.”
Behind Brennaman was Congresswoman Michele Bachmann (R-Minn.). The Republican firebrand, who had fought so hard against the law before it passed, was leaning against the wall near a portrait of Justice Edward T. Sanford. Brennaman said she noticed that members of Bachmann’s staff had taken two-hour shifts holding the congresswoman’s place over night. “They were lovely,” added Brennaman. “They all made it quite clear that they volunteered and they were happy to do it for her.” Bachmann’s office didn’t respond to requests for comment.
Journalists covering the Supreme Court don’t have to wait overnight, of course, and can call ahead to reserve a seat. Instead of an orange card, reporters get pink ones. Men must wear jackets and ties. In the press room, an official from the Public Information Office stood on a chair and cheerily gave us the rules. “No electronics,” she said. “No cellphones. No electronics of any kind. You can bring your pencil and your notepad and nothing else.” There are still a few places in D.C. where reporters can’t bring smartphones. We had to stow them in our bags.
Many reporters who cover the court don’t even bother going to the courtroom when opinions are announced. For purposes of filing, sitting in the courtroom can be a waste of time. Reporters who stay out of the courtroom can actually get the opinions faster. As soon as the opinion is announced, officials downstairs tear open gray document boxes and hand out pre-printed copies. Journalist Lyle Denniston has covered the Supreme Court for more than five decades, since 1958, and I found him in a cubicle in a corner of the pressroom downstairs. “Up there,” he told me, referring to the courtroom itself, “you get to sense the drama. You smell the grease, as it were.”
Still, Denniston, who writes the influential Scotusblog.com, said he finds it easier to report the opinions without sitting in the courtroom. “My readers don’t care about the drama, they want to know what is in the rulings,” he said ruefully. “But upstairs is where history is being made.”
That might be true, but my assigned seat, F14, didn’t make for great viewing. It was cut off by huge pillars and some grand red drapes bound by thick gold braids. I was sitting with about 25 other journalists, squeezed together, watching the drama unfold from what amounted to a crack in the kitchen door. I could see only through the space between two columns, and by leaning forward could I see three chairs at the Supreme Court bench. If I stood up a bit I could see a fourth.
Nonetheless, when the clerk announced that the court was in session, I felt it in my spine. “Oyez, Oyez, Oyez!” she called out. “All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near.”
It was showtime: The judges were all seated.
The first ruling overturned the Stolen Valor Act, which made it illegal to lie about military service.
Next up was health care. “I have that decision,” said Chief Justice Roberts, announcing that he’d written the opinion. As he started to read I could see Justice Elena Kagan, the newest member of the bench, gazing around the courtroom. She sipped from a metallic travel cup. Next to her was Justice Samuel Alito, who seemed to be engrossed in reading the entire time. He sipped from a white mug. And next to him, looking tiny and frail, was Justice Ruth Bader Ginsburg, staring down at the bench in front her. She drank from a regular brown coffee cup with a lid.
Then the legal drama began. From the beginning, Roberts seemed critical of the individual mandate, characterizing Congress as ordering “an individual to buy an unwanted product.” “The framers gave Congress to right to regulate commerce,” he said, “not to compel it.”
The journalists were scribbling like mad. It looked bad for the health care law.
“The Commerce Clause,” Roberts went on, “is not a license to regulate an individual from cradle to grave.”
Then he said it: “The majority of the court agrees that the Commerce Clause cannot sustain the individual mandate.”
In other words, the congressional right to regulate interstate commerce didn’t justify the individual mandate.
As I wrote, I heard someone whisper “Wow!” It seemed that they were about to toss out the law, by finding that the individual mandate went beyond Congress's right to regulate interstate commerce.
I looked up and I saw that Justice Ginsberg was still keeping her head down.
That’s when Roberts gave everyone a surprise with the rest of his opinion. The individual mandate could be seen as a tax, he said—meaning people can be taxed if they fail to get insurance. “Nothing in the Constitution,” he said, “guarantees the individual can avoid taxation for inactivity.”
“The position is upheld,” Roberts said.
In that second, we all knew that he individual mandate would remain. This time I heard two whispered “wows” near me.
One of the reporters hissed: “So Roberts was the swing vote!”
Justice Ginsburg stayed in her seat as Roberts read his ruling about another issue, Medicaid. Kagan seemed to be continuously looking around the courthouse, and Alito was thumbing through some papers on his desk.
The drama was now over. We knew the law would stand. Kennedy read the minority opinion for the conservative wing of the court: Justices Scalia, Thomas, and Alito. “In our view, “ he said, “the act before us is invalid in its entirely.”
Ginsburg, the liberal who had been there for 19 years, still sipped from her cup. She was waiting for her chance.
When Ginsburg finally began speaking, her voice was strong. She sounded a little angry at the intellectual contortions of the court’s majority. “It is a stunning step back,” she said of the claim that the Commerce Clause couldn’t be invoked, “that should not have staying power.”
And with that, she returned to her meditative pose.