Prognosticators weigh in on possible ACA outcome
WASHINGTON – By now, the nine justices of the Supreme Court know the fate of the Affordable Care Act and the individual mandate and are actively writing drafts of the decision, which most expect will be handed down in late June.
That said, the tenor of the three-day arguments and the rigor of the questioning by specific judges on the court heartened many of the observers who are hoping for the Court to strike down the individual mandate.
Onlookers were especially buoyed by the performance of Paul D. Clement, the attorney representing the state of Florida and the other petitioners. His delivery was more polished than that of Solicitor General Donald Verrilli, who at times during the second day of arguments appeared to stumble in his defense of the individual mandate.
But observers of the Court say people should not read too much into the performances. “Much of what people saw was really more a matter of personal style,” said Greg Pemberton, head of the healthcare practice and a partner at the law firm Ice Miller in Indianapolis. “Verrilli is famous for not using notes during his arguments and he argued all three days – a Herculean task. From needing to say what needed to be said, he did a fine job. That is in sharp contrast to Clement’s presentation – he is well known as a master of sound bites …so in terms of style points he certainly won in that sense.”
Many people in published Op-Ed pieces and in the blogosphere have been intent on trying to read the tealeaves to predict the justices’ votes. In so doing, they have turned to a handful of studies that link the number of questions posed by the justices to each side of the argument: the more questions the justices ask of an attorney, the less likely it is they are leaning in that direction. The studies show that in 86 percent of cases argued before the Supreme Court this holds true
If that is the case, say the data crunchers, the individual mandate is in trouble. Eight of the nine justices were active questioners (Justice Clarence Thomas hasn’t asked a single question during oral arguments in six years and is considered to be a lock to vote against the law), and four of the justices – Kennedy, Alito, Scalia and Roberts – directed the bulk of their questions at Solicitor General Verrilli, suggesting the government’s case is on shaky ground.
Yet others contend that in a case such as this, predicting the outcome is better left to an analysis of the arguments themselves. That could also spell trouble for the law.
“Paul Clement gave the best argument I've ever heard. No real hard questions from the right. Mandate is in trouble,” tweeted Tom Goldstein, of Goldstein & Russell, P.C., and publisher of SCOTUSblog after Clement’s brilliant day arguing against the individual mandate on day two.
But Peter Jacobson, president of the Public Health Law Association, thinks even that measure can be misleading.
“Just because a Justice asks a probing or thought-provoking question doesn't mean he or she is leaning one way or the other,” contended Jacobson. “The Justice may simply be trying to clarify the nature of the argument or its implications. A Justice may also use questions to frame arguments for other Justices that the attorneys miss or do not clearly articulate.”
Even Clement, the star of the hearings, seems inclined to agree with this sentiment and instead indicates that the most important part of any case is that which has remained largely unseen by the public.
“I’m a big believer that oral argument makes a difference,” Clement said in an article published recently in New York magazine. “But I’m also a big believer that, comparably, the briefs make even more of a difference.”