Justices face health-law ‘noise’

WASHINGTON — Justice Clarence Thomas likens all the outside political pressure that the Supreme Court is facing over its review of the Obama administration’s sweeping health-care law to the distraction faced by a free-throw shooter confronted with fans waving wildly behind the basket. Neither, in his view, has much impact in the end.

“Why do you think they’re never distracted? They’re focusing on the rim, right?” Thomas said when asked at a forum earlier this month about the pressures of the health-care case. “That’s the same thing here,” he said. “You stay focused on what you’re supposed to do. All that other stuff is just noise.”

With three days of arguments set for this week, the nine justices will need the steely focus of a clutch freethrow shooter to block out all the noise surrounding a case that has generated perhaps the most intense outside lob- bying campaign that the high court has ever seen.

The U.S. Chamber of Commerce, which has helped lead opposition to the health plan, has been hosting moot-court sessions to prep lawyers involved in the case. Advocates on all sides of the issues, including Tea Party leaders against the law and health-care professionals who favor it, are planning rallies. Many groups, like the American Constitution Society, liberal backers of the law and of Congress’ power to regulate commerce, are setting up war rooms and daily briefings on the Supreme Court steps to provide nearinstant readouts on the oral arguments.

In all, groups involved in the debate have spent tens of millions of dollars in the past two years to steer the political and legal debate. And a record number of organizations — 136 so far — have filed amicus curiae, or “friend of the court,” briefs, densely packed with historical citations and legal arguments, to urge the court to either strike down or uphold the sweeping healthcare law crafted by the Obama administration.

“Whenever you see a blockbuster case, we see the different groups coming out,” said Anthony Franze, a Washington lawyer who co-wrote a study of such amicus briefs. “And this is the blockbuster of blockbusters.”

With the start of arguments this week, the lobbying efforts move from Congress squarely to the Supreme Court, which has found itself drawn increasingly into politically charged cases in recent years, including its intervention in the 2000 Florida recount in Bush v. Gore; its rulings limiting the sweep of executive power in Guantanamo Bay, Cuba; and its remaking of campaign-finance law in the 2010 Citizens United ruling.

Lobbyists and lawyers with a stake in the case will give near-instant analysis for their clients and for reporters, many of whom will be covering the arguments from start to finish.

Proponents of the 2010 health-care law, working with the White House, have also developed “talking points” to emphasize the potential harm if the law is thrown out, including the reduction in coverage for those with pre-existing conditions and for young adults who wish to remain on their parents’ policies.

The groups filing friendof-the-court briefs with their views of the law include not only the usual heavy hitters such as the chamber, AARP and virtually every major health-care association, but also obscure groups rarely if ever involved in a Supreme Court case.

“We don’t expect to be even a blip on the court’s radar, except to maybe count up the ‘for’ and ‘against,’” said Quentin Rhoades, a lawyer for the Montana Shooting Sports Association, which filed a 26-page brief opposing the law as a breach of states’ rights. He said he spent about 50 hours, pro bono, preparing the brief with another lawyer.

Dozens of other constituencies filing briefs put in similar effort.

Prize-winning economists are wading into the debate with briefs that offer clashing views of the economic benefits and harms that they believe the health-care law offers.

Catholic and anti-abortion groups are opposing it because of concerns about federal financing for abortion services.

And the state of Massachusetts, which approved a similar insurance model under then-Gov. Mitt Romney in 2006, argues in its amicus brief that its experience “confirms that Congress had a rational basis” to impose minimum insurance requirements.

Typically, law clerks wade through the amicus briefs — known as “green books” for their covers — and highlight notable issues for the justices. But getting a justice’s ear is not cheap.

Lawyers who work on amicus briefs before the Supreme Court say it can cost between $25,000 and $100,000 in lawyers’ time and expenses to prepare one, plus $1,500 or more to have them printed and distributed at the court.

But does the cajoling from outside groups have any real impact on the court’s decisions?

At least in the case of the formal amicus briefs filed with the court, research suggests that, increasingly, the answer is yes.

A study published last year in The National Law Journal by Franze and R. Reeves Anderson, his colleague at the law firm Arnold & Porter, found the Supreme Court justices are not only receiving more amicus briefs than ever before, but also citing them as support for their opinions far more often as well.

But the impact of less formal politicking outside the court — media coverage, rallies, protests, forums and other “noise,” as Thomas called it — is less clear.

In a speech last year in Kansas City, Mo., Justice Stephen Breyer said politics outside the court’s chambers should not and generally does not play a part in its deliberations.

But there are no doubt times when it has, he acknowledged, pointing as one example to the court’s infamous Dred Scott decision in 1857 classifying blacks as property but not citizens.

When Thomas was asked about the outside pressure in the health-care case at a law forum at Wake Forest University this month, he brushed it aside with a wave of the hand, saying all that matters are the formal pleadings that sit in a mail bin.

“All that other background noise, I never — I don’t listen to all this stuff,” he said. “I don’t read the papers, I don’t watch the evening news.” If justices let outside pressures distract them, he said, “in my opinion, you have no business in the job.”

Among the stories in news media over the past few months were questions about whether he and Justice Elena Kagan could objectively consider the health-care case because of their own personal and political connections.

Liberals in Cong ress and elsewhere contend that Thomas’ objectivity is called into question by the paid consulting work that his wife, Ginny Thomas, has done with Tea Party groups in opposing the health-care law.

Conservatives, meanwhile, assert that Kagan’s own impartiality could be compromised by her role as President Barack Obama’s first solicitor general during the start of the legal fight over the health-care legislation.

Neither justice has indicated any hesitation to hear the case. And Chief Justice John Roberts has said that he has confidence in all his justices — who are not bound to follow the ethics guidelines that govern federal judges — to decide when they may want to remove themselves from a case because of a possible conflict.

Bradley Joondeph, a law professor at Santa Clara University who has cataloged briefs in the case, said that while he saw no need for either justice’s recusal, he believes it is unrealistic to think the court could fully insulate itself from outside pressures.

“There’s no way for human beings to screen out the rest of the world on a decision like this,” Joondeph said. “This just sort of stands out as one of those cases where the institutional stature of the court is on the line.”