Read The Tea Leaves, But Justices (And Their Clerks) Aren't Telling

Jun 27, 2012
Originally published on June 27, 2012 2:26 pm

Several dozen people know how the Supreme Court will rule on the constitutionality of President Obama's health care law. And it'll stay that way until sometime after 10 a.m. ET on Thursday, when the court releases its opinion to the rest of us.

The decision will have broad societal, economic and legal ramifications, and will play a featured role in the November presidential election. But the justices and their young law clerks — the only ones privy to the deliberations — don't leak opinions. It's virtually unheard of.

That may explain, in part, the intense focus on what tea leaves can be read.

Like oral arguments which prompted much speculation. Moments after part of the case was debated in March, for instance, CNN legal analyst Jeffrey Toobin called the proceedings a "train wreck" for President Obama and declared: "This law looks like it's going to be struck down."

Could be. But quickly reading too much into the one fleeting public moment in a long legal process can be tricky.

"Look, for example, at the propagation of the idea that Solicitor General Donald Verrilli did a really bad job of arguing for the government," Scotus Blog's Lyle Denniston told the Nieman Journalism Lab. "That went viral instantly, and is now accepted wisdom across the country that Verrilli really blew it.

"On closer examination, that's not true," Denniston explained. "Some parts of the argument substantively could have been sharper, some parts of his argument tended not to be responsive to the court, but he had a really challenging task of doing this over three days of time. A serious observer of the requirements of oral advocacy would say that the easy judgments — the easy conclusions — are not really supportable."

Covering the court for three years in the '90s, I was cautioned by more experienced legal journalists – the handful of others who worked at the court on a daily basis, Denniston among them – not to read too much into oral arguments.

Justices have been known to use the brief window (generally 30 minutes for each side at arguments, although more in big cases like health care) to get lawyers to clarify fine points, or even to play devil's advocate in an effort to find some legal nugget overlooked in mounds of documents.

After all, cases before the court have been in the legal pipeline for months or, more typically, years, carrying lower-court arguments and rulings, and a long paper trail from parties involved and others wanting a say. Justices have a pretty good idea of how they're voting before oral argument, one of the last stages in the process.

And while there is now a science to analyzing arguments, it's not an exact science.

A 2009 study analyzing argument transcripts over a 27-year period "strongly supported" a hypothesis that "Supreme Court Justices are more prone to question at oral argument parties against whom they will vote than parties for whom they will vote."

For what it's worth, in this case, the Obama administration's lawyers were questioned more often than their counterparts over three days of oral arguments.

Perhaps the tea-leaf-readers with the most insight are former Supreme Court law clerks (each justice generally has four per term), those who have been through the process close up, and who have been entrusted with keeping secret the justices deliberations.

A survey of 38 former Supreme Court law clerks and 18 lawyers who have argued before the Court found 57 percent forecasting that the court will strike down the individual mandate after oral arguments — up from 35 percent before the case was argued.

On NPR's Morning Edition Wednesday, Jamal Greene, a law professor at Columbia and former clerk for retired Justice John Paul Stevens, explained the give-and-take by which a Supreme Court opinion is drafted. He also had this to say about Thursday:

"I'm armchair quarterbacking this as much as anyone. I've been saying for a long time that I'd be surprised if the court were to strike down the individual mandate, and I've sort of maintained that. But I've certainly been wrong before."

Veteran legal reporter Joan Biskupic at Reuters even found some potential hints for health care in this week's ruling on the Arizona immigration law.

"What the Arizona compromise will augur for the most closely watched case of the term is anyone's guess," Biskupic wrote. "Yet the justices' evident search for common ground in the immigration ruling and a few other cases this term could portend a healthcare decision that does not predictably cleave along political lines."

Of course, only nine people get the final say. And they'll let us know Thursday. Sometime after 10 a.m. ET.

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