With a marathon three days of arguments about the constitutionality of the Patient Protection and Affordable Care Act (the "ACA") now completed, the Justices of the Supreme Court of the United States, having conducted their post-argument conference, are turning their attention to drafting and the discussions that will lead to a majority opinion and, likely, several dissents and concurrences. The Court's decision should be forthcoming before the end of June, when the current term ends. In the interim, the health care industry and employers generally will be watching eagerly as they plan their provider and payer activities, their employees' coverages, and their investments, acquisitions, and divestures. While, as we will show, the ultimate decision is shrouded in doubt, there are several matters that can be identified in the short run.

How Do the Justices Stack Up?

It has been reported widely that the government did not provide the Justices with a persuasive defense of the ACA, and so conventional wisdom has suggested that the most-controversial provision of the ACA is a dead letter. That provision is the so-called "individual mandate," which requires that most people above the Medicaid eligibility level purchase health insurance or suffer a penalty administered under the Internal Revenue Code ("Tax Code") by the Internal Revenue Service ("IRS"). Arguably, the government was unable to articulate a cogent limiting principle that would govern what would appear to be an otherwise unlimited Commerce Clause power under which the Congress could not only mandate health insurance but also force unwilling participants to enter commerce to do just about anything else that was considered a national priority, like buying American cars.

While the individual mandate may, in fact, ultimately fall and perhaps take most or all of the rest of the ACA with it, the press and other commentators may be a bit premature in predicting a "conservative" majority in favor of killing it. That prematurity is the result of the consistent overestimation of the importance of oral arguments in the Supreme Court. In fact, oral arguments rarely influence the outcome of a case and the Justices' comments and questions often are no more than the exploration of troubling issues, not their final determination of them. The parties' and amicus curiaes' brief, as well as the Court's clerks' memos and the Justices' own research and views, will be far more influential. So is there a count that can be made now, and is it determinative?