Supreme Court Secretly Decides Obamacare's Fate

Updated from 12:14 p.m. ET with closing bell results

NEW YORK ( TheStreet) -- Should any of the U.S. Supreme Court justices suffer a heart attack during Friday's conference to discuss opinions on the Patient Protection and Affordable Care Act, Justice Elena Kagan would leave her seat, walk to the chamber door, open it, and notify the U.S. Marshal securing the room to get a doctor.

That's how secretive Friday's opinion conferral is among the justices and just one slice of the procedures carried out as the highest court in the land determines the fate of the health care law otherwise known as Obamacare.

Obamacare's fate could be secretly decided Friday.

"On Friday they will take a vote, and that vote will be probably the final vote, although it's not binding and the justices can change their minds later," said Greg Magarian, a Washington University in St. Louis law professor who clerked for former Justice John Paul Stevens.

The justices will confer in a room by themselves -- no one else is legally allowed to be present except for the nine men and women appointed by current and past presidents -- seated in order of seniority as the chief justice heads the discussion.

Chief Justice John Roberts, who formerly clerked for former Chief Justice William Rehnquist, holds his conferences in the same tradition as his predecessor.

In this tradition, each justice, starting with the most senior (which is the Chief Justice), states an uninterrupted opinion about the arguments for the specific case. Each justice may speak only once to state his or her comments, which, once completed, concludes that justice's opportunity to speak again.

The next justice in seniority then confers his or her opinion about the case; that order repeats until the most junior -- Kagan -- completes her statements.

Kagan's junior status is why she would have to alert the U.S. Marshal standing guard at the chamber door if one of the justices had encountered any health difficulties. That's an extreme case. The usual request Kagan may make is to call out for lunch for the nine as they confer.

Seniority of the court goes in the following order: Roberts (even though he isn't the longest tenured, the chief justice is always the most senior), Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Samuel Alito, Justice Sonia Sotomayor and Kagan.

Once all justices have stated a case, Roberts will then hold a vote for where they intend to side on a case. The "majority" opinion refers to the side that garners -- at least in the Obamacare case -- five votes, while the "dissenting" opinion is the minority.

"The senior justice in the majority will then decide who writes the majority opinion, and, traditionally, the senior justice among the dissenters will decide who writes a primary dissenting opinion," Magarian said. "Although anybody can write a dissent, and anybody in the majority can write a separate concurrence explaining why they ... partially agree and partially disagree."

Here's the catch. You won't know about it until June.

Once Friday's conference ends, the justices won't reconvene on Obamacare until they announce a final decision in June.

The majority author will set to the task to write the majority opinion, which will then circulate among the majority justices. They will then suggest changes or modifications to the original written opinion.

There is a possibility that one or many of the justices changes his or her opinion during this period, but it doesn't commonly occur. What is more likely in the Obamacare case is that a justice may remain with the majority or dissenting vote he or she cast in Friday's conferences, but offer a different opinion.

For example, if Kennedy joins a majority vote to uphold Obamacare because of the Commerce Clause, Kennedy could say he decided to uphold the law for a different reason. This would be called a "disconcurrence" in the judgment. Regardless, Kennedy would, in that hypothetical scenario, stand in the majority to uphold Obamacare. (Kennedy's judgment is unknown at this point.)

Before discussions in the Supreme Court began Monday, Magarian said that this was likely one of the rare occasions when the justices had not formed a conclusive opinion before the oral arguments. He also said it will certainly be a case that offers a lot of differing opinions among the justices.

"I'd be shocked if there weren't at least four or five opinions," Magarian said. There could be more; this is big, and everybody gets that."

Once the majority opinion garners at least five signatures, then it is formally finished. The dissenting justices will then respond to the majority opinion and embark on the same writing process: The dissenting author writes the opinion and the dissenting justices offer tweaks to the opinion.

That's it. Obamacare's fate will be secretly known by a few people for two months as the justices take time to write an explanation.

Though health insurers surged in Thursday trading on an inferred tone from the justices that they'd consider constitutionality of the law without severability, stocks must wait with the rest of us for a conclusive judgment.

Health insurance stocks closed higher Friday along with the broader U.S. indices. UnitedHealth Group ( UNH) was at $58.98, up 87 cents or 1.5%; Aetna ( AET) climbed to $50.17, up 61 cents, or 1.2%; Cigna ( CI) jumped to $49.26, up 29 cents, or 0.59%; Coventry ( CVH) was at $35.57, up 97 cents, or 2.8%; WellPoint ( WLP) rose to $73.81, up $2.19, or about 3.1%; and Humana ( HUM) closed at $92.49, up 95 cents, or about 1%.

-- Written by Joe Deaux in New York.

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