Supreme Court justices can hide their intentions in plain sight, even with something as complicated as health care.
The judicial utterances during this week’s lengthy oral arguments left a common impression that the conservative-led court might strike down some or all of the 2010 health care law.
Unfortunately for the White House, these kinds of impressions can be valid clues.
“If you are a frequent attendee at the court, and you study the issues, and you know the justices’ jurisprudence, you can know an awful lot from what happens at oral argument,” said Todd Gaziano, director of the Heritage Foundation’s Center for Legal and Judicial Studies.
Like many observers of the three-day oral arguments, Gaziano came away convinced the court is leaning toward striking down some or all of the law. The overwhelming consensus left White House officials insisting afterward that the arguments defy interpretation.
“Anybody who believes that you can try to predict the outcome of a Supreme Court case based solely on the questions of the justices is not a very good student of the Supreme Court,” White House spokesman Josh Earnest insisted this week.
But Earnest is only partly right.
Supreme Court questions, it is true, can mislead. Sometimes, justices may play devil’s advocate. They may want help in framing their own answers. The rapid-fire questions themselves might be all but incomprehensible even to those within the legal priesthood.
“Don’t forget her question,” Justice Stephen Breyer told one lawyer Tuesday, following up on an earlier point from Justice Elena Kagan.
“I’ve forgotten my question,” Kagan admitted.
Scholars, though, have traced connections between the justices’ queries during oral arguments and the final decisions from the court.
A University of North Carolina political scientist and her colleagues, for instance, examined 8 million words spoken by justices over 30 years to conclude last year that “when the justices focus more unpleasant language toward one attorney, the side he represents is more likely to lose.”
Experienced advocates and close court observers, too, can likewise piece together reasonable predictions from a combination of questions asked, tone, prior rulings and the courtroom equivalent of body language.
“You can’t know anything for certain from the oral arguments,” Wisconsin Attorney General J.B. Van Hollen said in an interview, “but they can give you a feeling. They’re a predictor, but a cautious predictor.”
Put another way, Supreme Court oral arguments can have a certain vibe. The transcripts don’t catch it, but participants can feel it. The question for crystal-ball gazers is how much stock to place in something as ephemeral as a vibe.
Van Hollen, for instance, was in the court for two days of the oral arguments this week. An opponent of the health care law, he said he saw something interesting in the presence of Mary Kennedy, the wife of Justice Anthony Kennedy. Perhaps, he suggested, the justice’s wife wanted to see history in the making; and history, Van Hollen said, means in this case that the law is struck down.
Maybe that’s over-analyzing the presence of a supportive spouse. Consider, then, the court’s seeming deference to a final rhetorical flourish by U.S. Solicitor General Donald Verrilli Jr.
For three uninterrupted minutes Wednesday — an eternity in oral-argument time — Verrilli concluded with a stirring speech about health care and freedom from disease. No justice broke in to question him.
“In a very fundamental way, this (law) secures the blessings of liberty,” Verrilli intoned.
A Supreme Court novice might think the justices’ silence meant they were respectfully reflecting on Verrilli’s final words. And, maybe they were. The Heritage Foundation’s Gaziano, though, thought the lack of questions meant the justices already were checked out of the argument — not a good sign for Verrilli.
Sarah A. Treul, a University of North Carolina political scientist, joined three other scholars in studying the transcripts of nearly 3,000 Supreme Court cases argued between 1979 and 2008. In a study published last year, the researchers concluded that words matter.
“While justices gather information and seek answers that will help them decide close to their preferred outcome, they do so in a way that provides emotional clues as to how they may act when they ?nally vote on the merits,” the researchers wrote in The Journal of Politics.
“We can predict just over 70 percent of votes and cases” based on oral argument questions, said Timothy Johnson, one of the researchers on the paper and a University of Minnesota political scientist.
Chief Justice John Roberts Jr., too, has identified at least some connection between oral argument questions and final results.
In a 2005 study, Roberts examined 28 cases heard by the Supreme Court. He subsequently reported in the Journal of Supreme Court History that 86 percent of the time, the side receiving more questions from justices ultimately lost the case.
Other researchers have identified similar patterns, including the likelihood that an individual justice is more likely to vote against an attorney of whom he or she asks more questions.
If this pattern holds, the health care law could be on thin ice.
Widely considered one of two potential swing votes, Roberts asked 19 questions of Verrilli, the Obama administration’s chief lawyer, during the crucial Tuesday arguments over the health care law’s individual mandate. Roberts asked only two questions that day of Paul Clement, the attorney who wants the law struck down, a transcript review shows.
Kennedy, the other potential swing vote, divided his questions Tuesday more evenly among the two sides. And then there is Justice Antonin Scalia, who bluntly stated his intention when discussing what happens to the law if the individual mandate is struck down.
“My approach would say if you take the heart out of the statute, the statute’s gone,” Scalia said.
© 2012 McClatchy-Tribune Information Services
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