Do the oral arguments matter?

By Jonathan Bradley in Sydney, Australia

28 March 2012

The Supreme Court has now heard two days of oral argument on whether the Affordable Care Act is constitutional, and experts are inferring, from the thrust of the justices' questioning, that the outlook for Obama's signature reform is grim. Here's Sarah Kliff, for instance:

Going into Tuesday morning’s Supreme Court arguments, there was decently widespread agreement that the health reform law’s mandated purchase of insurance would survive the Court’s questioning. One poll released Monday, of 69 former Supreme Court clerks and attorneys who had argued there, found that 65 percent expected the provision to be upheld. On InTrade, odds hovered just about 67 percent.

But when the Court let out after two hours of oral arguments on the individual mandate, observers seemed a lot less certain. Jeffrey Toobin told CNN that he thought the arguments were a “trainwreck” for the administration, predicting now that the provision would get struck down. Donald Verrilli, who represented the Obama administration, stumbled over his words in his opening statement while Paul Clement, representing the law’s opponents, delivered a strong performance. On InTrade, the odds of the mandate being overturned shot up to 55 percent.

Certainly the court seemed far more hostile to the individual mandate than observers expected — particularly the court's conservative judges, whom many observers expected to take a reticent stance based on precedent and a desire not to extend the court's reach too far into contemporary political debate.

But what if the day's arguments didn't matter that much? Jeffrey Toobin suggested to Ezra Klein that, in general, oral argument is not particularly important to the outcome of a case:

"Most Justices say their minds are changed by oral arguments a handful of times — fewer than five — per year," he e-mailed. "In my experience, the higher profile the case, the less oral arguments matter, because the Justices have strong and longstanding views about major constitutional issues. The Justices mostly use oral argument to talk to, and lobby, each other, through their questions to the lawyers." In other words: The minds the justices are looking to change may not be their own.

Further, Jonathan Bernstein cautions against getting too confident with predictions either way, and Lyle Denniston proposed that not much has changed from before the Court heard the arguments:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

Meanwhile, Mike Barthel thinks the politics will end up being far more important than the constitutional questions:

[T]he case you want to look to here, it seems to me, is Bush v. Gore. That case was decided on explicitly partisan grounds. The court came up with some legal logic, but then at the end of the decision they said that they weren’t establishing a principle and no one should apply this logic to any other case. They just sorta waved their hands and said “Hey, we wanted to decide this case this way, but we couldn’t really justify it, so we just decided it that way anyway and never mind why.”

The same thing is likely to happen here, I think. Of course Congress has the authority to tell everyone they have to do something. Even before reform, the health care industry in America was already so highly regulated that it looked like a Soviet grain production scheme. And the Court doesn’t have any interest in overturning that principle, not only because it would cause chaos, but because it would lessen their own authority. (The law that gives administrative agencies power to set regulation also gives federal courts the ability to adjudicate them; it’s the balance-of-powers equivalent of voting yourself a pay raise.)

And so, if they do overturn it, it’s going to be an incredibly narrow and nakedly partisan ruling.

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Tags: Anthony Kennedy, Indvidual Mandate, Obamacare, Supreme Court

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