March 27th, 2012

Reading the justices: second day of SCOTUS arguments on HCR

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:

10 Responses to “Reading the justices: second day of SCOTUS arguments on HCR”

  1. kolnai Says:

    I listened to the audio and it was not as disastrous as the liberals are making it out to be. Don’t know why they’re getting so histrionic about it. Cheer up, lefties!

    The conservatives were clearly skeptical of the government; the liberals were clearly skeptical of the opponents. Kennedy was torn (duh), and, strictly based on what he said (which doesn’t mean much) leaning ever so slightly against the government. The upshot stated by most commentators is right in my view: it all comes down to whether or not Kennedy can persuade himself that health insurance is a sui generis market. I think he wants to persuade himself. Just not sure if he’ll be able to manage it. We’ll see.

    It’s so depressing that it’s come to this.

  2. Tesh Says:

    Aye, there’s something deeply wrong that the republic can hinge on one man. Or, more accurately, maybe, that we’ve degenerated from a republic where that wasn’t possible.

  3. expat Says:

    Given that the person ultimately responsible for drafting the law said that you have to pass it to find what’s in it and given that the final version was completed only hours before the vote, I think SCOTUS should be able to rule that the law is a POS reflecting primarily a dereliction of duty by the other branches of government.

    It is representative of the Obama Eat Your Peas philosophy of ruling.

  4. Don Carlos Says:

    Yup, Obama et al. (and I include much of the GOP on the Hill) rule, and do not govern.

  5. Mr. Frank Says:

    If the law is upheld it could energize conservatives for the fall elections. Conversely, if it is struck down, Obama won’t have to run on it.

  6. Don Carlos Says:

    The actual big day is tomorrow, Severability Day. I am not optimistic. Today was pretty straightforward. The indiv mandate (Section 5008!!!) may fail by a larger vote than 5-4, but if the other 2000+ pages survive, citizens will die the death of 1000 ‘cost-efffectiveness’ cuts via the IPAB, just as an example.

    The Obamacare law is loaded with landmines; its crafters were pernicious, but not stupid. This thing had a long gestation, and was launched at a window of maximal opportunity.

  7. Curtis Says:

    Note attached to PPACA: We support early death through smoking, obesity, cancer, heart disease and above all negligent health care and the cessation of country music.

    I hope you dance with Lee Ann Womack
    I hope you glance at Lee Ann Womack
    I hope you romance Lee Ann Womack
    I hope your stance is Lee Ann Womack’s.

  8. Mrs Whatsit Says:

    The questions a judge asks during oral argument tell you which issues strike the judge as most important, but not which way the judge is going to vote. A judge may be especially critical of the very position the judge is leaning toward taking, in order to get the lawyers to provide the best arguments in favor of that position and expose its weaknesses ahead of time.

    I notice that many of the liberal commentators this evening are blaming Verrilli for doing a bad job. Mother Jones said he sounded “less like a world-class lawyer and more like a teenager giving an oral presentation for the first time” and Jeffrey Toobin said, “I don’t know why he had a bad day. He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.” Funny how it doesn’t occur to them that the problem might be the law rather than bad lawyering. No matter how prepared Verrilli may have been, the reason he struggled to articulate a limiting principle on Congressional power is not that he’s a bad lawyer but that if Obamacare is Constitutional, then there are no limiting principles left.

  9. Steve Says:

    If the Supreme Court strikes down Obamacare in June because of the individual mandate, because it is unconstitutional to force someone to buy something, I think that says a lot about Romney and his support for the same sort of mandate at the same level. Is it ok to force someone to buy something at the state level? Hopefully the decision comes before the nomination.

  10. Curtis Says:

    Great! Romney shows his stuff in the ring.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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