I’ve noticed a lot of speculation today about the way the questioning is going in the Supreme Court, and what it might mean for the ultimate ruling.
And that’s as it should be. It’s a case of unusual importance, and not just because HCR is a big deal. The constitutional questions raised are an even bigger deal.
But it’s been my observation in the past that trying to predict what the justices will rule based on the questions they ask during oral arguments is a fool’s errand, although a very tempting and perhaps irresistible one, especially for legal analysts. Justices ask questions for a lot of reasons, but one of the main things they appear to be doing is acting in a Socratic manner, almost like law school professors trying to tease from the advocates for each side all the possible arguments pro and con. Then after some contemplation they ordinarily rule exactly as they were leaning in the first place, IMHO—usually with Justice Kennedy casting the deciding vote.
So articles like this, although interesting, are not necessarily good prognosticators:
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature…The argument on Tuesday pointed the Justices in opposite directions – the first hour against the mandate, the second hour cautiously in its favor.
Well, yes. That’s the way these oral arguments tend to go.
So I don’t think any predictions right now mean much, although you can read about the issues and the arguments at length at the links I’ve already given. One thing I will say, though, is that at this point none of the justices agrees with the oral argument of that great legal mind Nancy Pelosi: