Correction: An earlier version of this article misstated Christopher Walker’s job title. He is an assistant professor of law at Ohio State University.
The much-anticipated Supreme Court ruling on challenges to the health care law did not come on Monday. But the wait doesn't mean any last-minute maneuvering is going on. More likely, it's proofreading.
Chief Justice John Roberts said decisions in all outstanding cases — which would include the health care law — would come down on Thursday.
It was no big surprise that the hottest case of the term would be saved until the end. As many Court veterans noted, big, close, and complex cases tend to take the longest, and the health care case is all three of those things.
But just because the justices are waiting until the last minute does not mean that they are still negotiating behind closed doors about where their votes lie or what the various opinions will say. Instead, they're mired in the boring stages of Supreme Court opinion-making: checking footnotes and bullet points.
"It would be really surprising if there would be changes at this point — we’re three days away," said Christopher Walker, an assistant professor of law at Ohio State University and a former clerk to Justice Anthony Kennedy. "It’s not like they’re changing their minds about how they are going to vote."
Several former clerks said that the Court's work has entered, or is just about to enter, the proofreading stage, when professional legal editors review the text to check for style and ensure that all the case citations are correct. The Supreme Court reporter's office, which performs these functions and writes a brief summary of each case called the "syllabus," typically takes a few days to ensure that all the t's are crossed and i's dotted before the opinion reaches the public.
There is also the matter of printing the opinion. Every time the Court announces a ruling, it must also have paper copies at the ready for the public. The Supreme Court printing office is run by an in-house team of professionals, and they need time to produce hard copies.
In the pre-internet era, that process used to take longer. In high-impact cases like the health care case "there would be people lined up for blocks and blocks, literally," said Tom Goldstein, a lawyer who frequently argues before the Court and publishes the Court news site SCOTUSBlog. Every major law firm or trade association would want a paper copy. Now, the printing office can run off a few hundred copies overnight.
With the opinion expected to come on Thursday around 10 a.m., any changes being made by the justices or their clerks would be very minor.
"Everyone is working incredibly hard and long hours to get it polished and ready for prime time," said Kevin Walsh, an associate law professor at the University of Richmond, and a former law clerk to Justice Antonin Scalia. "We're talking polishing and refining and really fine-tuning. You're not going to see any chunks of reasoning change or anything like that."
Even with all the final checks, mistakes sometimes slip through in the final rush. In his dissent in a juvenlle sentencing case issued Monday, Justice Samuel Alito accidentally mixed up the names of a murderer responsible for a "brutal thrill-killing," Christopher Simmons, and the prison superintendent in his case, Donald Roper, Goldstein noted. "It's not at all uncommon for a thing like that Roper thing to slip through," he said.
Monday had been the last scheduled day for decisions to come down, but it's very common for the Supreme Court to schedule extra days in the last weeks of its term. Given that historic practice and the number of cases remaining, many Court-watchers assumed that it would do so this week. Several journalists who attended the Court's session last Thursday noted that the Roberts did not describe Monday as the term's final day, as is his usual custom when a term's closure approaches.
There is always the very, very, very slim possibility that some emergency would prevent the Court from issuing the health care law opinion this week. But because the chief justice has already said that day would wrap up the term, "there's virtually no chance," said Steven Engel, a former clerk to Kennedy who is now a partner at Dechert LLP.
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