{"id":1057,"date":"2012-03-29T21:04:29","date_gmt":"2012-03-30T01:04:29","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1057"},"modified":"2015-10-02T15:23:41","modified_gmt":"2015-10-02T15:23:41","slug":"how-predictive-is-oral-argument-questioning","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/03\/29\/how-predictive-is-oral-argument-questioning\/","title":{"rendered":"How Predictive is Oral Argument Questioning?"},"content":{"rendered":"

By David Yin<\/em><\/p>\n

The mainstream media and legal blogosphere have covered the oral arguments in the Patient Protection and Affordable Care Act litigation (Dept. of Health and Human Services v. Florida<\/a>)\u00a0ad nauseam.\u00a0<\/em>The\u00a0NYTimes\u00a0certified<\/a>,\u00a0\u201d[t]here is no tea-leaf reading like Supreme Court tea-leaf reading\u201d and excerpted commentary from notable sources:<\/p>\n

Lyle Denniston from\u00a0SCOTUSBlog<\/a>\u00a0determined that the argument ended \u201cwith\u00a0Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate\u2019s savior.\u201d Other observers, listening to the same argument, were not so optimistic about the law\u2019s chances. Andrew Cohen of The Atlantic\u00a0reported<\/a>\u00a0\u201c[t]he initial wisdom from the commentariat coming out of Tuesday\u2019s argument, after all the barking by court conservatives, is that the insurance mandate is in trouble.\u201d Jeffrey Toobin of the New Yorker\u00a0declared<\/a>, in a\u00a0much-criticized<\/a>\u00a0rant, \u201cThis is a train wreck for the Obama administration\u2026 This law looks like it\u2019s going to be struck down. I\u2019m telling you all of the predictions, including mine, that the justices would not have a problem with this law were wrong.\u201d Dahlia Lithwick of Slate\u00a0penned<\/a>\u00a0a piece titled, \u201cA Moment of Silence for Obamacare.\u201d<\/p>\n

All this analysis elides the antecedent question, which is how much stock should we be putting into these pointed questions?
\n
\nRex E. Lee, a former Solicitor General, was\u00a0often asked<\/a>\u00a0just how much an oral argument affected a case. His response was always \u201ca confident \u2018I don\u2019t know.\u2019\u201d While Lee\u2019s point was not intended to imply that oral argument is not useful, one might deduce that even one of the greatest oral advocates could not reliably predict whether his side was helped, or hindered, by the Court\u2019s questioning. Lee went on to note, \u201cIt should not be inferred, however, that comments in oral argument always reflect the justices\u2019 views. In the case of some members of the present Court, what you see and hear at oral argument is what you get at the conference vote. In other cases, it is not.\u201d In other words, justices often play devil\u2019s advocate, and trying to divine their position is just that\u2013a game of astrologers and soothsayers, correct on some days, and wrong on others. And there are many reasons why a justice might want to play devil\u2019s advocate. For this politically-charged case in particular, it may be important for optical reasons for conservative justices to be seen as aware of the government\u2019s shortfalls before begrudgingly upholding the law on moderate grounds. In general, justices may want to test one side\u2019s argument as far as it will go to develop an opinion that best outlines the limits of their rule.<\/p>\n

A number of political scientists have attempted to statistically prove the contrary. A paper from Epstein, \u00a0Landes, and Posner; for example,\u00a0concludes<\/a>\u00a0that justices tend to ask the most questions (and most wordy questions) of the side they tend to vote against. I haven\u2019t done the math for the PPACA oral arguments, but given Breyer\u2019s absurd 472-word question to Clement (transcript<\/a>\u00a0pages<\/em>\u00a061-63), I\u2019d agree his skepticism is pretty much set in stone. Yet as much as general trends might be extracted from years of oral arguments, Lee\u2019s point stands: for any one case, the confidence one has in predicting the outcome based solely on the questions should be low.<\/p>\n

This term, the Supreme Court decided an important political question doctrine case,\u00a0Zivotofsky v. Clinton<\/a>\u00a0(also known as MBZ v. Clinton). \u00a0The legal blogs turned out in full force, with most of the forecasts based on the oral argument going in favor of [Sec. State] Clinton\/the Executive. SCOTUSBlog\u2019s Lyle Denniston\u00a0wrote<\/a>, \u201cthe Court appeared to be leaning toward giving the White House a more modest victory over Congress.\u201d Slate\u2019s Dahlia Lithwick\u00a0concluded<\/a>, \u201cThe court appears poised to decide the substantive question in this case and to support the president\u2019s expansive view of executive authority.\u201d A few months later, much to the surprise of apparently everyone but Zivotofsky\u2019s attorney, the Court came down with an 8-1 decision against the Executive.<\/p>\n

Another example is the case of\u00a0Helling v. McKinney<\/a>, a 1992 case about whether housing a nonsmoking inmate with a smoking inmate constituted cruel and unusual punishment under the 8th Amendment. Although the lawyer for Nevada\u2019s prisons was admittedly atrocious, amicus curiae was the U.S. Government, represented by then-Deputy SG John G. Roberts. Roberts delivered a killer analogy to bolster Nevada\u2019s case: \u201cIf a parent smokes and exposes children to secondary tobacco smoke, we don\u2019t brand that as child abuse.\u00a0It\u2019s difficult to imagine how what we allow parents to do to children in the home is somehow cruel and unusual when done to a convicted felon in prison.\u201d Roberts\u2019 analogy clearly piqued the Court, which posed it to said felon\u2019s lawyer, and received an unconvincing response. Yet despite apparently \u201cwinning\u201d oral argument as much as Clement \u201cwon<\/a>\u201c\u00a0on Tuesday, Roberts\u2019 side went down 7-2.<\/p>\n

The problem with divination from oral argument is that it makes too much of too little. As any lawyer or law student knows, the briefs have much greater weight for the bench than oral argument. Paul Clement explained,\u00a0\u201cI\u2019m a big believer that oral argument makes a difference, but I\u2019m also a big believer that comparably the briefs make even more of a difference.\u201d Of course, a justice\u2019s understanding of the law trumps both. I notice that despite his\u00a0usual recalcitrance<\/a>, we are all very confident in Justice Thomas\u2019 vote in the healthcare case. And even a terrible oral argument from one\u2019s opponent\u00a0may not spare the other side from the cold hard merits (e.g. the respondent\u2019s argument in\u00a0U.S. v. Alvarez<\/a>\u00a0was cringe-worthy, but I\u2019d bet Alvarez wins nonetheless).<\/p>\n

Ultimately, the commentary on the healthcare oral arguments is interesting and informative to read, but should be taken with a heavy brick of salt. I suspect if any journalists or law professors could actually predict outcomes of cases with great accuracy and confidence, they would have long ago retired their pens to make fortunes in financial markets.<\/p>\n","protected":false},"excerpt":{"rendered":"

By David Yin The mainstream media and legal blogosphere have covered the oral arguments in the Patient Protection and Affordable […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[2],"tags":[],"class_list":["post-1057","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-h3","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1057","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1057"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1057\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1057"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1057"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1057"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}