Thursday, March 29, 2012

Reading The Tea Leaves Left From The Obamacare Oral Arguments

This week media reports and "legal experts" have examined closely the questions asked by United States Supreme Court justices during oral arguments.  The examination has been part of an effort to read the tea leaves about which way the court will vote will vote on the challenge to Obama's health care law.  The conclusion is that the Supreme Court will vote 5-4 to strike down at least part of the law.

What a bunch of nonsense.

I'm not saying the predictions are wrong. But having argued cases before the federal and state appellate courts, one thing I have learned is that you never leave oral argument knowing which way the panel of judges will rule.  The questions asked at oral argument often do not represent the leanings of the judges, but many times reflect their playing devil's advocate.

My mentor, the late Judge Paul H, Buchanan, Jr. of the Indiana Court of Appeals, did not believe oral arguments were at all helpful.  During my three years as his clerk, I don't think he ever granted oral argument and participated in maybe three arguments as part of the panel.

My fellow conservatives need to lower their expectations.   The reality is that we do not know what the Supreme Court will do.  Trying to guess the result from what questions the justices asked and how those questions were asked, is a fun game, but it is only a game.  The truth is nobody knows how the Supreme Court will rule and anyone who suggests otherwise is a liar.

4 comments:

Nicolas Martin said...

As a non-lawyer who has listened to oral arguments, I agree. In a recent case it sounded as though the court leaned against the side I preferred, yet they voted overwhelmingly for it. The justices are quite good at masking their biases.

I have heard none of the Obamacare arguments, but I'd bet the court upholds it. I think 5-4, with Kennedy providing his usual muddled and confusing vote to the majority. If Kennedy writes the majority opinion history may never grasp what it meant, aside from approving the takeover of medical care.

Indy Student said...

I concur with Paul and Nicolas. Anyone who has listened to court arguments before knows that justices can act like jerks to either "side", even if we know how they're going to rule. They interrupt lawyers who are trying to do their best "Mr. Smith Goes to Washington" impression and basically browbeat them.

I doubt anyone changed their mind based on the arguments of the administration or those suing.

Cato said...

Oral arguments are a waste of time and give judges an excuse to not read the briefs and to rule on appearance, charm and popularity.

marksmall2001 said...

Nic, I agrew w/your assessment.
Indy Student, Au contraire. Good appellate oral argument feature lawyers entering the chambers with a plan of battle that completely is thrown off by the first questions from the panel. A good appellate advocate listens to the questions and tries to answer them---not attempt to segue the Justice or Judge in question back to the lawyer's talking points. "Mr. Smith" does not last long.
Cato, Oral arguments serve several purposes. One is to inquire about the issues. Another is to settle differences between members of the panel---i.e., the Justices/Judges argu their positions through the lawyers.Another purpose is to let the public see the process of appellate advocacy. That's hy Indiana's appellate courts do "road shows" in outlying counties to let people in small towns listen towhat occurs.