Tuesday, March 27, 2012

The Supreme Court of the United States Hears Oral Arguments on Healthcare Reform

Today the Supreme Court of the United States ("SCOTUS") entered day two of what are scheduled to be three days of oral arguments on the Constitutionality of Healthcare Reform.  If you have been following the news on this at all, you have seen many predictions by legal scholars and analysts as to how they expect SCOTUS to ultimately rule on this issue.  In supporting their predictions, there are a number of supposed indicators, one of which is the types of questions being asked by the Justices.  In my opinion, the types of questions asked by the Justices is likely no indicator at all, as to how they will rule.

In 2001, SCOTUS (which had a different make-up than it currently does) heard oral arguments in PGA Tour, Inc. v Martin, 532 U.S. 661 (2001), to which I had the honor and fortune of being in attendance.  At the conclusion of arguments, the folks I was with, myself, and most everyone in the room and news media was convinced, based upon the questions asked by the Justices, that Casey Martin was going to lose, and likely lose big.  As it turns out, SCOTUS ruled 7-2 in favor of Mr. Martin (and you can read the full opinion above).

Understanding that this is only one example of thousands of cases argued before SCOTUS that did not go as "predicted," certainly the argument can be made on a case-by-case basis that the questions asked are indicative of the likely outcome.  My experience however, as a member of the gallery for SCOTUS arguments, as a member on brief for two cases argued before SCOTUS, and as a litigator, is that Judges and Justices often charge hardest at the arguments with which they agree.  The purpose of oral arguments, from their perspective, is to test the merits of the arguments, and vet all conceivable counter arguments.

In the Healthcare Reform situation, just because the Justices are hammering the Administration's position that the law is Constitutional, is not in-and-of-itself a predictor as to how SCOTUS will ultimately rule on this issue.  That said, I do not sell out to the notion that the Justices' questions are any indication that they will rule the law unconstitutional.  My point here is that Judges and Justices are usually very good at masking their opinions, if they have formed any at all, during oral arguments.  Most of the time, they take on the roll of devil's advocate, and/or attack all positions equally, so that they can best understand both sides of the argument, along with the strengths and weaknesses of each.

Moreover, it is entirely likely that the Justices have not yet decided how they will rule on this matter.  Even if they have a supposed idea of how they will rule, it is very likely that they are still learning and determining the framework from which they can ultimately rule.

As in every other situation, only time will tell, and given the significance of this SCOTUS decision, it will likely not be until the end of this term, in early October, 2012.  Until then, we are all free to guess how SCOTUS will rule, and it will certainly make for great debate in the interim.

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