It was a coincidence that on Tuesday morning before we went up to the courtroom for the police GPS-tracking arguments, some of us in the Supreme Court press corps were talking about how rarely the outcome of a case catches us off guard.
The subject came up as we chatted about the fact that the justices were about to issue their first opinion of the term and the chance a ruling might present news that competed with the GPS arguments. (See story) We knew it was a small chance. This early in the term, it’s rare to see a big, consequential ruling. And none of us thought any of the cases heard so far would produce a blockbuster.
“When was the last time we were surprised by a decision?” one of my senior colleagues asked. We offered up a few examples, but only a few. One was the 2009 voting-rights case from Texas in which the court ruled narrowly after it looked like a majority was ready to roll back the landmark 1965 Voting Rights Act.
As it turned out Tuesday, the first decision of the Supreme Court term, Greene v. Fisher, a death penalty case from Pennsylvania, was no surprise.
But it was not long after we came down from the GPS arguments that we heard a shocker. A few blocks away, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by veteran conservative Judge Laurence Silberman, had upheld the Obama-sponsored health care law. The decision was issued just two days before the Supreme Court justices are scheduled to decide whether they will take up the politically charged litigation. (See story.) The D.C. Circuit case is not now in the series of petitions the justices will consider in Thursday’s private conference. But I’d really be surprised if most of the justices, many of whom are former colleagues and friends of Silberman, don’t get their hands on his opinion to see how he reads the health-care law as lawful.