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The high court

Mar 28, 2012 - By Steven R. Peck

The U.S. Supreme Court usually does its very important business in relative obscurity. The public simply doesn't pay much attention.

That is less so this week, when the court is reviewing the sweeping overhaul of health care insurance passed by Congress in 2010 and challenged in lower courts almost continuously ever since.

The dramatic arguments in the stately Supreme Court building near the Capitol, which end Wednesday, are the public pinnacle of the case, but they really are a relatively small part of it. So, while it's easy for amateur court watchers to assign great significance to a particular question, retort, scowl or eyebrow raise of a particular court justice, it's doubtful anything said or not said during the three days of public hearings will be a balance-tipper in the court's eventual decision.

More important are the discussions among the justices behind closed doors, their own interpretations of the law, and previous court rulings on this particular case that have led to this point. Some have affirmed the health care law, others have rejected it. That's how big cases like this end up at the Supreme Court -- when the lower courts can't agree.

A huge factor for the Supreme Court is previous case law, or precedent. The justices and their hyper-smart law clerks will comb the annals of American jurisprudence to see how other courts have ruled through the decades on cases with similar characteristics.

One is the so-called commerce clause of the U.S. Constitution, which gives Congress the right to regulate commerce among the states. We see this practice in place all the time as big corporate mergers, purchases and bankruptcies are approved by federal regulators, Congress or federal courts. Tuesday's announced sale of the Los Angeles Dodgers will be subject to judicial approval under the commerce clause, for example.

There have been many previous rulings on this point that affirm the right of Congress to regulate commerce, and it is one of the central points of the health care case now before the court.

The Supreme Court, particularly this one, often is willing enough to reverse previous court precedent, but the justices will want solid justification for doing it.

So, if you listen to the delayed broadcasts of this week's arguments, you'll hear some pointed questions from a justice that might appear to portray a preference on the outcome. But that isn't necessarily indicative of preference so much as a desire to ensure that the positions being espoused can withstand the toughest possible scrutiny. In other words, a justice might be thinking "I may well decide to agree with you, but then there had better be a very good reason. Convince me."

Clearly, the court believes this case to be particularly important, having allotted six times more face-to-face argument before the bench than the typical case gets. That suggests a similar quantity of behind-the-scenes research and historical analysis will be conducted as well.

On this monumental issue, it looks as if the high court is going the extra judicial mile. In our system of government, where the courts are the last recourse, that's all we can ask for. The rest is up to the men and women in the long black robes.

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