HCFA Executive Director Amy Whitcomb Slemmer was at Wednesday’s Supreme Court arguments on the constitutionality of the Medicaid expansion. Here’s her report:)
Greetings from SCOTUS (as the cool kids are calling it). This was another incredible day from the Supreme Court of the United States where the final day of arguments about the constitutionality of the Affordable Care Act was discussed, dissected and debated among the members of the highest court in the land. Day three had fewer protesters providing color commentary outside the building, but double the line standers because the day’s arguments were divided between the hearing in the morning which focused on severability – i.e. if the court struck down one part of the ACA would the rest of it stand or fall, and the hearing this afternoon which examined the constitutionality of the Medicaid expansions.
Instead of taking a sure shot at a 3-5 minute line ticket in the morning, I staked my entire morning’s efforts on getting a seat for the full afternoon arguments. I am THRILLED that it paid off! Not only did I have a terrific time in line for hours this morning, meeting fascinating people, talking to far flung journalists, and being harangued by a dedicated Tea Partier, but out of 60 publicly available tickets, I was ticket number 55! And lucky 55 turned out to land me in a PERFECT seat – third row, center in an aisle chair rather than squished in the traditional bench seating.
Sitting in front of me was the long-time HCFA friend Cindy Mann, who represented us while at the Mass Law Reform Institute in the 90s, and now is the national Medicaid chief at CMS. Sitting in front of her was HHS Secretary Kathleen Sebelius whose discretionary power to completely eliminate individual states’ Medicaid funding was at the forefront of much of today’s debate. Sitting behind me were members of Congress, including the dean of our own delegation Congressman Ed Markey, with whom I enthusiastically agreed that “it is ALL about Massachusetts!” He then generously introduced me to the leaders from the National Health Law Program and I introduced him to the woman who was first in line for the week’s arguments. She was the lawyer from Atlanta who was collecting signatures on her pocket Constitution, and Congressman Markey generously joined her group of signers.
Once the arguments began I took copious notes (no computers allowed). We were allowed to have a pen and paper – without writing on it – in the court room. Also no scarves, cell phones, clothing with logos, or hats – although a woman who sat in the spouse section arrived with a giant red chapeau and I didn’t see her being asked to remove it.
By 12:50 pm the room was packed, and a hush fell over the crowd, like we were in church. No one got up, only a few stragglers were shown to their seats and for nearly 5 full minutes there was no activity whatsoever. We stood as the Justices entered the court room and waited until we were invited to be seated. Mr. Clement, the former Solicitor General representing Florida and another 25 states opposing implementation of the Affordable Care Act, stepped to the lectern, said, “May it please the court,” and we were off. Justice Kagan interrupted immediately asking what amount of money would the Federal Government have to offer for something not to be coercive, but a gift. And what, she hypothesized, would happen if the Federal Government offered to pay 100% of the program that was being proposed? And the debate was off.
True to form, this was another hearing in which Justice Thomas did not speak, but he was the lone silent Justice, as everyone else got in on the action at some point. Justice Alito did not ask any questions of the Mr. Clement, but asked several of Solicitor General Verrilli.
Judged on speed of answers and ability to redirect the Justice’s focus to the question at hand, Mr. Clement was unmatched. The Solicitor General did a very good job, and was at a distinct disadvantage as most of the questions that were aimed at him lived in the realm of hypotheticals. He truly was challenged to bring the Justices back to the case at hand.
At the end of the allotted time, the Chief Justice allowed the Solicitor General an additional 15 minutes of time – which I thought must have been a miserable gift for this lawyer who had to have thought the home stretch was before him. He made the most of his time and continued to respond to very difficult and labyrinthine questions and then it was time for the closing arguments. Mr. Clement summarized the arguments we had already heard – he stuck closely to the three reasons his clients were arguing against the constitutionality of the Affordable Care Act.
The Solicitor General closed by saying that this is all about liberty. He co-opted the arguments made by the opposition, both politely in the court room and outrageously in front of the court. The Solicitor General summed up on behalf of all of us who believe in health care for all that the Affordable Care Act is constitutional and provides the opportunity for liberty for millions of uninsured Americans who will be given the liberty of being free from dying without health care, or going into bankruptcy because of a chronic illness. General Verrilli gave finished with the most passionate statement that I heard of the afternoon. There were a few more comments made and the hearing came to a close.
A side note that I found interesting: there are fierce rules about decorum in the court room. No talking or even whispering. Silence and sitting still are required. However, about ten minutes before the end of oral arguments, members of court security handed 3×5 white index cards to the members of the House who were in the court room watching the proceedings. The cards were received, read and each member looked around figuring out what to do, and eventually filed out of the room quietly. Again, no one else was allowed to stand, and the mass exit (probably a dozen members) was handled quietly, without fan fare and minimal disruption. It turned out that the House was having a vote and members had about 8 minutes to get across the street to exercise their franchise.
So here was an unofficial courtesy extended from the Judicial branch to the Legislative branch of our government, even as the case for the constitutionality of a sweeping piece of legislation that the legislative branch passed was being heard.
-Amy Whitcomb Slemmer