Reading the tea leaves on health care decision

(CBS News) WASHINGTON - After oral arguments over President Obama's health care reform law at the Supreme Court three months ago, it appeared five justices were prepared to overturn the law's key provision: The requirement that all Americans have health insurance from birth until death or pay a penalty, the so-called "individual mandate."

(At left, watch "CBS This Morning" preview the court's ruling)

But even if the justices had been divided 5-4 to uphold the law at the end of March, much can change between an initial vote and the decision. Justices can and have changed their minds in cases before. They can temper their views or compromise to narrow the impact of a ruling. They can form blocs with other justices to dictate the result.

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CBS News and CBSNews.com will have ongoing coverage when the Supreme Court hands down its ruling, which is expected shortly after 10 a.m. ET.

No one outside the court knows how the justices will rule, and we won't know until shortly after 10 a.m. ET. To its credit, the court is the only place in town that doesn't leak. On an issue of this magnitude -- a case that will affect the lives of all Americans -- that fact alone is extraordinary.

It also has Washington gripped with speculation, desperately looking for any clue that could suggest how the court will rule. The smallest thing -- a justice's mood in a public gathering -- now is being analyzed for bigger meaning.

Piled up together, the tea leaves have opponents of the law feeling anxious and uncertain and senior Obama administration officials daring to have hope.

Let me be clear on this: We all know the tea leaves aren't worth much -- it's the law that matters. It's more a reflection of how anxious people are about this decision. Plus, you always have your optimistic and pessimistic fans who read things entirely differently based on their underlying outlook on life. Optimistic fans see positive signs everywhere; pessimistic fans always interpret signs negatively, believing their team will lose so they're pleasantly surprised if they win.

So with those caveats firmly in mind, here's the deal. There are signs that suggest the court will uphold the mandate. Here are some of the tea leaves lawyers close to the case on both sides are reading. Take it for what it's worth:

• 1. At least two conservative justices who are expected to be solid votes to overturn the mandate have seemed glum, which some worry is a bad sign for the law's opponents. One told friends recently, "It's been a bad year." Another said, with resignation, "I'm tired."
  
  Counterpoint: Maybe it's been a bad year because the Miami Heat won the NBA championship or other reasons entirely unrelated to the court or the decision. Maybe being tired is just being tired.


• 2. Justice Antonin Scalia's scathing dissent in the immigration case -- in which he was bemoaning the end of state sovereignty -- seemed so angry, so over the top, that observers believed he had to be fired up about something more.
  
  Counterpoint: Maybe he really is angry about the immigration decision. And would Scalia really summarize two angry dissents from the bench on two back-to-back opinion days?


• 3. Liberal justices recently have seemed upbeat and at ease. Justice Ruth Bader Ginsburg even made lighthearted remarks about the case at a recent convention for liberal lawyers.
  
  Counterpoint: Maybe they're just trying to keep up appearances. Maybe it's a giant head fake. Maybe they are just happy in general. This is just ridiculous.


• 4. The decisions handed down in other recent cases weren't written by the Chief Justice John Roberts. That means he's probably writing the health care opinion. But that doesn't necessarily mean the conservatives carry the day. Maybe he's cobbled together a compromise with Justice Anthony Kennedy and the liberals. After all, Roberts doesn't like divisive 5-4 decisions on controversial, highly watched cases. He's long urged the court to take a narrow approach for greater consensus, to compromise for greater unanimity. Moreover, he's never seemed as troubled by federalism issues as his old boss and predecessor, William Rehnquist. Would he really overturn health care based on the commerce clause with a decision that split the court along ideological lines?
  
  Counterpoint: Yes. He's a solid judicial conservative unwilling to compromise on the Constitution, and his questions in oral arguments suggest he believes Congress clearly exceeded its constitutional authority. If Roberts compromises on the law, in a case of this magnitude, what does he even stand for?


• 5. A careful reading of the argument transcripts reveals Kennedy was perhaps less opposed to the law at argument than initially reported. Many in the media were shocked during the arguments that the justices seemed hostile to the law, and so they went overboard immediately afterward, reporting gloom and doom. But Kennedy's questions actually were more nuanced than that. His questions later in the arguments suggest he could be open to the government's position that health care is unique. That means he could give liberals their decisive fifth vote to uphold.
  
  Counterpoint: There is no counterpoint. Kennedy could vote to uphold. He could vote to strike down. He is the key swing vote. Roberts won't be in the majority to uphold the law if Kennedy isn't. If Kennedy goes, then Roberts may follow to try to contain the damage. But this case will be determined in large measure by Kennedy, and as I always tell the kids: Kids, don't ever bet the family farm on Justice Kennedy.

We'll find out the decision -- based on the law and not the speculation -- shortly after 10 a.m. ET.

[TimeToEvolve]

I have some slight amount of renewed faith in America because of this. The Supreme Court did not try to usurp the power of the legislative branch and overturn a duly passed law.

However it is clear we need to get rid of the 4 conservative judges who voted against the law. They are right wing big corporate operatives who have no feelings or respect for humans.

[MTATL67]

Come on let's not read too much into the expression and mannerisms of the Justices prior to the court's ruling . ACA upheld by the SCOTUS is now the law of the land. I'm sure Scott Brown is relieved he can continue to have his 26yr old daughter covered by his insurance. Congratulations Mr. President.

[sjc_1]

Be careful what you wish for comes to mind. This is not as good as a Public Option nor Single Payer, but it is a start in the right direction. Everyone has to pay what they can to provide health coverage to more people.

Medicaid expansion was struck down on grounds that I do not understand. Politically they did not want to burden the states, but on the law it is as valid as Medicaid was to begin with.

A mixed decision, but all in all a good one. I am surprised and pleased, I thought this court would make yet another wrong decision for all the wrong so called reasons. Citizens United and Gore vs. Bush were both horribly wrong, it is good to see that they got this one mostly right.

[usn83]

This is great. And punditry is tough! Thanks.

[YesImright]

Always interesting to read the liberal media "classify" justices. I will never forget when Time Magazine jumped the shark and called Ginsberg a moderate, saying there were no liberals on the court.

Interesting no mention of Kagan, one of only two justices to rule in favor of unions stealing non-union members money without warning for use in politics (which we know will only go to Democrats).

Of course no one has any doubt Soto mayor is going full on for the law, but it would stll seem pertinent to mention that issue since Obama clearly nomniated her so she would be a definite yes vote.

I always chuckle when libs say the court is so far right just because Republican POTUS' nominated one or two more justices. As per the article Roberts is clearly a moderate, not a hard core conservative, otherwise the Dems would have filibustered him as well. Realize that Obama voted against.

There are 3 reliable conservatives (Scalia, Thomas and Alito), 4 Reliably Liberal (Kagan, Soto, Ginberg and Breyer), and two swing/moderates (Roberts and Kennedy).

So in reality the libs got the advantage, but liberals never wlll admit, like in this recent union case, even the hard-line libs sometimes have to vote with the constitution.

[Oblio2011]

What does the miami heat index have to do with anything? Weird.

[animaltoo]

If this bill is passed, our doctors' offices will look like free clinics in Tijuana.

[ugacrew]

If you were in pain and suffering and had no insurance and the only clinic that would treat you were in Tijuana, you would be first in line, "animaltoo."

[Earlsoutham]

In Canada, you can wait for twelve hours to see a doctor and nine months to get a crucial operation scheduled. That's why so many Canadians come down to the US to have medical procedures done.

[ukpa]

In the US, unlike in Canada (or any other civilized western country), you can wait a lifetime for a doctor and never see one, if you have no insurance. Unlikely since a medical need may become a far more costly emergency, but still.. Virtually every part of the crazy US system as it currently exists drives up cost without improved outcome, from infant mortality rate right through to life expectancy.

[grnfrg--]

Earls--- You obviously know very little about Canadian health care, but I'm sure there are those that will think you are an expert.

[yemrej]

"Maybe they are just happy in general. This is just ridiculous." Great, and humorous, writing. It's such a depressing day sure to be filled with partisanship and vitriol. I needed this.

[tuckbodi]

I work out, I eat right, and I take my medications as my doctor prescribes. I in fact, weigh the same as I did 30 years ago when I graduated from college. I am healthier than 75% of my friends and get comments all the time that I don't look my age.

Why is it then, that someone like Gov. Chris Christie, who has a choice yet wants to be a Type II Diabetic, can get better health insurance than I can? Who, because I was cursed by God with Type I Diabetes, can't even get health insurance because it is a pre-existing condition.

Both political parties (I voted GOP for 30 years BTW) have this all messed up. We should be penalizing people like Christie who don't take care of themselves, and reward people like me, who do.

[ugacrew]

You attribute far too much to your own doing. One day, in all your physical glory, you might get run over by a big bus. Yes, misfortune can happen even to college-educated-do-everything- right-stuck-on-themselves-cause I'm-better-than-they-are-health- nuts. It can be called irony but sometimes just plain "fate."