Why Oral Arguments Don’t Tell Us What the Court Will Do

Last week the media became momentary experts on the Supreme Court. I found it amusing to hear some of the prognostications derived from the Obamacare oral arguments. What very few of the pundits explained was the mechanics of how the Court operates. Without understanding that, it is very difficult to put oral arguments in the proper prospective.

By the time oral arguments are presented, most of the Justices have already formed strong opinions about a given case. This is more true of high profile cases like Obamacare when the Justices have, by that time, considered the case in depth. Cases are first presented to the Court in filed documents that request the Court to take up the case. Those filings present the arguments and issues in detail. These requests are considered by the Justices many months before oral arguments. Very few requests are ever granted, but once the Court does accept a case the parties then submit briefs that include detailed arguments and analysis of legal precedent as it relates to their specific case. Often non-parties also file amicus (friend of the court) briefs with the Court. In the case of Obamacare, close to 100 different groups, including Liberty Legal Foundation, filed amicus briefs. The Justices consider these amicus briefs, and their staff’s research of the briefs, in preparation for oral arguments.

So, you can see that a party presenting an oral argument is very unlikely to present a perspective that the Justices haven’t already considered.  

Despite all this oral arguments can still change the outcome, but I believe that such changes are rare. I listened to all of the Obamacare oral arguments from last week. There were certainly some interesting points made, but I seriously doubt that any of the Justices ended the week with a fundamentally different decision than what they had at the beginning of the week.

The most likely time for a Justice to change his or her opinion is actually after oral arguments, during the preparation of the Court’s written opinions. Anyone that writes regularly understands that the process of writing forces you to crystallize your thoughts. Good writing requires a logical progression of ideas. This is particularly true for legal writing. So, the process of writing often leads the writer to confront facts and assumptions that he or she may have ignored or glossed over before writing. For this reason, writing sometimes changes a Justices opinion on an issue. Justices have often “changed sides” during preparation of the Court’s rulings.  

So, if you consider the fact that real changes of opinion are more likely to happen after oral argument, not during oral argument, you can see that it’s almost impossible to get any real indication of how the Court will rule from oral arguments.

Many of the main-stream-media opinions about Obamacare are very educational. Even the predictions about how the Court will rule can be entertaining. But don’t bet the farm on any predictions. We at Liberty Legal Foundation will continue to hope for the best, but prepare for the worst. Barring a miracle ruling that returns us to pre-1942 commerce clause jurisprudence, Liberty Legal Foundation will continue the fight after next summer’s ruling with our Obamacare Class Action.

SIDE BAR

Last week I wrote that the wrong arguments were presented to the Court. Let me clarify: I was only referring to the oral arguments presented last week. I was not saying that the Court had not received the correct argument. LLF presented that correct argument in our amicus brief, filed with the Court several weeks ago. Our brief set forth all the reasons why the Court MUST overturn Wickard v. Filburn.

Oral arguments are only presented by the parties to the specific case that the Court has agreed to hear. Liberty Legal Foundation’s Obamacare Class Action is still active, but it was not the case taken up by the Court this session. This is why LLF was not presenting oral arguments last week.

Amicus (friend of the court) briefs are filed by people or groups that are not parties to the specific case that the Court has agreed to hear. The Court understands that it’s ruling will affect other cases, present and future. For that reason it reviews all amicus briefs. Often those briefs form the foundations of the Court’s ultimate ruling. We hope that the Court will use the information and arguments presented by LLF’s brief to correct it’s 1942 misinterpretation of the commerce clause.

If the Court fails to correct it’s 70 year-old Wickard mistake, LLF will be presenting the Court with another opportunity through our Obamacare Class Action lawsuit.

Please listen to this excellent podcast regarding Obamacare by one of your fellow members, Debra J.M. Smith.

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