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Next step for Supreme Court on Obamacare: secret Friday vote

The justices meet to discuss the health-care bill on Friday.

By Mark ShermanThe Associated Press / March 29, 2012



While the rest of us have to wait until June, the justices of the Supreme Court will know the likely outcome of the historic health care case by the time they go home this weekend.

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After months of anticipation, thousands of pages of briefs and more than six hours of arguments, the justices will vote on the fate of President Barack Obama's health care overhaul in under an hour Friday morning. They will meet in a wood-paneled conference room on the court's main floor. No one else will be present.

In the weeks after this meeting, individual votes can change. Even who wins can change, as the justices read each other's draft opinions and dissents.

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But Friday's vote, which each justice probably will record and many will keep for posterity, will be followed soon after by the assignment of a single justice to write a majority opinion, or in a case this complex, perhaps two or more justices to tackle different issues. That's where the hard work begins, with the clock ticking toward the end of the court's work in early summer.

The late William Rehnquist, who was chief justice for nearly 19 years, has written that the court's conference "is not a bull session in which off-the-cuff reactions are traded." Instead, he said, votes are cast, one by one in order of seniority.

The Friday conference also is not a debate, says Brian Fitzpatrick, a Vanderbilt University law professor who worked for Justice Antonin Scalia 10 years ago. There will be plenty of time for the back-and-forth in dueling opinions that could follow.

"There's not a whole lot of give and take at the conference. They say, 'This is how I'm going to vote' and give a few sentences," Fitzpatrick said.

It will be the first time the justices gather as a group to discuss the case. Even they do not always know in advance what the others are thinking when they enter the conference room adjacent to Chief Justice John Roberts' office.

By custom, they shake hands. Then Roberts will take his seat at the head of a rectangular table. Scalia, the longest serving among them, will be at the other end. The other seven justices also sit according to seniority, the four most junior on one side across from the other three.

"They generally find out how the votes line up at the conference," said Orin Kerr, a George Washington University law professor who worked for Justice Anthony Kennedy nine years ago.

The uncertainty may be especially pronounced in this case, where the views of Roberts and Kennedy are likely to decide the outcome, Kerr said in an interview Thursday. "I don't think anyone knows. I'm not sure Justice Kennedy knows."

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