Political Animal


March 27, 2012 8:35 AM A Day For Mystery Lovers

By Ed Kilgore

Today could mark the most heavily scrutinized oral arguments in Supreme Court history, considering the stakes, substantive and political, in the Court’s decision on the “individual mandate,” the rapid expansion of media outlets interested in this type of deliberation, and the lead time everyone has had to anticipate this appeal.

But oral arguments, of course, don’t offer anything other than intimations of where the Court is headed. Here’s how Ezra Klein puts it at Wonkblog:

[I]t seems unlikely today’s oral arguments will dislodge the justice’s conclusions. Indeed, it would seem faintly ridiculous, and possibly even irresponsible, for the justices to permit one lawyer having a particularly bad or good day before the bench to flip such a consequential case. But what do the experts think?
I posed the questions to some legal scholars and reporters. “There is never any way to know,” says Erwin Chemerinsky, dean of the law school at the University of California at Irvine. “As a lawyer, I always view oral arguments as my chance to answer concerns from the judge about my position. I want oral arguments and questions and the chance to answer - even if usually they won’t change the outcome.”
Jeffrey Toobin, who covers the Supreme Court for the New Yorker, was more skeptical. “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.
That last bit is important, agreed Dahlia Lithwick, who reports on the Court for Slate. Oral arguments are “the first time the Justices get to talk to each other about the case, so it can matter in terms of probing weaknesses and also getting a sense of what types of arguments one would need to deploy to get to five. In that sense it can matter a lot because you can begin to see what you need to do to move your colleagues.”
She also made another point worth considering: “Even if it were merely public spectacle it would still matter because in a branch that does everything else in secret, it is the only chance to see them do their jobs.”

I’d add to these excellent points that majority, concurring and dissenting opinions can be shaped by lines drawn in oral arguments. Yes, at the moment everyone is obsessed with “which way” the Court decides on the central issues, particularly the one it will discuss today. But the words the Justices use to decide the case, and perhaps even those used to repudiate that decision, can have a big impact down the road. And we may well get some indications today of where the lines are drawn and how sweeping a decision we can expect. Should be a good day for mystery lovers.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • Ron Mexico on March 27, 2012 8:58 AM:

    So, judges who think their own minds won't be changed by oral arguments (and "five" times a term given the number of cases on the court is equivalent to 0) also believe that their clever performances at oral arguments will change the minds of the other judges? Funny!

  • rea on March 27, 2012 9:00 AM:

    My experience with appellate cases at a more mudane level that the Supreme Court is that you don't often win a case at oral argument--but you sure can lose it.

  • DAY on March 27, 2012 9:01 AM:

    All this is arcane stuff and nonsense!
    The American People hate ObamaCare with an overwhelming (68%) majority, so the court should follow the court of public opinion!
    (Never mind that the American Bar Association says (85%) that the law will be upheld. . .)

  • sick-n-effn-tired. on March 27, 2012 9:10 AM:

    Best analogy I have heard so far on mandates..on NPR this am
    The broccoli analogy
    The government is going to force you to buy broccoli
    Oh, we don't want a government forcing us to buy broccoli .
    Suddenly people turn up at emergency rooms and buy 138 billions worth of broccoli.
    They are going to by broccoli no matter what
    It. Was. A. Republican . Idea.
    see Maddow's segment last night


  • walt on March 27, 2012 9:13 AM:

    It's been mentioned before that the Supreme Court is inherently political, that it puts a legal gloss on what amounts to the messy application of political power. This is why the right's incessant demonization of Obamacare is so important. It makes that application much easier. Look at how the right is framing this issue. There's almost no nuanced legal argument so much as its standard anti-centralization complaint (see: David Brooks). Law is the fig leaf we put over this tumescent ideological fervor.

  • Ron Byers on March 27, 2012 9:26 AM:

    Day, a large percentage of the people who "hate Obamacare" don't think it goes far enough. Most of the people who "hate Obamacare" don't understand it. The real problem is Obama doesn't have anybody on his staff who is worth a damn at selling it. The effort to sell Obamacare has been less than pathetic. The Demcratic party and the Administration's staff should be ashamed of how they have let the American people down.

    Oddly enough yesterday Chris Matthews dismantled a "tea party leader" sent to argue against the mandate. Nobody has done better.

  • Ron Byers on March 27, 2012 9:30 AM:


    I was an appellate court law clerk decades ago. Your comment is dead on point.

  • Bo on March 27, 2012 11:02 AM:

    The biggest "mystery" to me concerning this three-day SCOTUS ACA event is whether Clancy Thomas will awake from his years-long slumber and actually ask a question during oral arguments.

    Somehow, I doubt that even this monumental issue will not disrupt his coma. I think he falls into the "my mind's made up; don't confuse me with the facts" school of judicial thought.

  • Dug on March 27, 2012 12:05 PM:

    The most heavily scrutinized oral arguments in Supreme Court history? I think it's going to be hard to beat Bush v. Gore.

  • Anonymous At Work on March 27, 2012 12:28 PM:

    Actually, the post-decision opinions are the best chance to see the justices' work, as they have written down their work in a way not easily dismissed. Oral arguments are rarely recorded much less broadcast (i.e. aren't made permanent).

  • TCinLA on March 27, 2012 12:38 PM:

    For all those concerned by well-known tenthwit Jeffrey Toobin shrieking about the sky falling after oral arguments today, recall that he does work for the Cretins' News Network, an organization that has yet to be right about anything they report other than coverage of the sun rising in the east.

  • low-tech cyclist on March 27, 2012 1:33 PM:

    I'm gonna place my bet that the ACA will be upheld, 6-3. Kennedy's clearly leaning that way, and Roberts will go along so that he can write the majority decision and keep it narrow as possible.

  • Anonymous on March 27, 2012 2:32 PM:

    Since the essence of rightwing "thought" in general -- and Publican "principles" in particular -- is so clearly, "how can we empower the ownership class, and their corporate entities, to take yet more money from the majority of citizens / consumers / employees," there is zero chance that the Supremes will nix the gov't's ability to mandate purchases from the private sector.
    None whatsoever.
    Kelvin zero.
    The teabeggars and Publican congresscritters who have hypocritically opposed the mandate that they themselves had invented, when it was necessary to oppose Hillarycare, are short-term thinkers, so their tactical stance against everything Obama is unsurprising.
    But the Supremes aren't short-timers; they're playing the Long Con.
    You read it here first.

  • smartalek on March 27, 2012 2:39 PM:

    Dammit, worried so much abt crapcha, forgot to watch my tag.
    The anon above was me.
    If I'm wrong, I'll own it.
    But when I'm right, I want credit.
    And if anyone wants a few bux on this, my confidence is high, and the windows are open til post-time.