A Day For Mystery Lovers

Today could mark the most heavily scrutinized oral arguments in Supreme Court history, considering the stakes, substantive and political, in the Court’s decision on the “individual mandate,” the rapid expansion of media outlets interested in this type of deliberation, and the lead time everyone has had to anticipate this appeal.

But oral arguments, of course, don’t offer anything other than intimations of where the Court is headed. Here’s how Ezra Klein puts it at Wonkblog:

[I]t seems unlikely today’s oral arguments will dislodge the justice’s conclusions. Indeed, it would seem faintly ridiculous, and possibly even irresponsible, for the justices to permit one lawyer having a particularly bad or good day before the bench to flip such a consequential case. But what do the experts think?

I posed the questions to some legal scholars and reporters. “There is never any way to know,” says Erwin Chemerinsky, dean of the law school at the University of California at Irvine. “As a lawyer, I always view oral arguments as my chance to answer concerns from the judge about my position. I want oral arguments and questions and the chance to answer – even if usually they won’t change the outcome.”

Jeffrey Toobin, who covers the Supreme Court for the New Yorker, was more skeptical. “Most Justices say their minds are changed by oral arguments a handful of times — fewer than five — per year,” he e-mailed. “In my experience, the higher profile the case, the less oral arguments matter, because the Justices have strong and longstanding views about major constitutional issues. The Justices mostly use oral argument to talk to, and lobby, each other, through their questions to the lawyers.” In other words: The minds the justices are looking to change may not be their own.

That last bit is important, agreed Dahlia Lithwick, who reports on the Court for Slate. Oral arguments are “the first time the Justices get to talk to each other about the case, so it can matter in terms of probing weaknesses and also getting a sense of what types of arguments one would need to deploy to get to five. In that sense it can matter a lot because you can begin to see what you need to do to move your colleagues.”

She also made another point worth considering: “Even if it were merely public spectacle it would still matter because in a branch that does everything else in secret, it is the only chance to see them do their jobs.”

I’d add to these excellent points that majority, concurring and dissenting opinions can be shaped by lines drawn in oral arguments. Yes, at the moment everyone is obsessed with “which way” the Court decides on the central issues, particularly the one it will discuss today. But the words the Justices use to decide the case, and perhaps even those used to repudiate that decision, can have a big impact down the road. And we may well get some indications today of where the lines are drawn and how sweeping a decision we can expect. Should be a good day for mystery lovers.

Ed Kilgore

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.