How likely is it that the Supremes will strike down the Affordable Care Act? Clearly, it’s not looking good. Professional courtwatchers like CNN’s Jeffrey Toobin are hitting the panic button. After the first day of oral arguments this week, Toobin proclaimed, “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong. I think this law is in grave, grave trouble.” Slate’s Dahlia Lithwick isn’t particularly reassuring, either; this week, she wrote, “Could the five conservative justices strike down the entire health care law, and take us into what Kagan described this morning as a “revolution”? They could.” And Rich Yeselson reminds us that ideology rather precedent tends to be the deciding factor in big, highly controversial cases like the one against the ACA.
But do oral arguments really clue us in on what the ultimate decision will be, and do the quality of oral arguments matter? I was hoping that political science research might provide a glimmer of hope here by showing that, counterintuitively, the oral arguments carry little weight with the Justices. But alas, my hopes were dashed. The authors of an academic study on this subject conclude that the oral argument “affects final votes on the merits, and it has implications for how other elite decision makers evaluate and use information.” If this is true, then Don Verrilli — the Bill Buckner of the legal world — screwed the pooch on this one even more thoroughly than I thought.
Other studies show that “Justices tend to direct more questions and words at the side they eventually vote against.” So how do the ACA oral arguments stack up with regard to particular metric? Once again, it doesn’t look good. Political scientist Michael Evans did an analysis of the ACA arguments, and according to the numbers he crunched, he concludes that “the individual mandate is in serious trouble. This indicator suggests a 5-4 decision striking down the mandate.” Aside from Evans’ caveat that the word count is “not a perfect predictor” (“~86% accuracy in the published studies”), there’s not a whole bloody lot of comfort to be taken from this body of research, either.
The legal arguments against the ACA seem so shoddy that I’d like to think that no self-respecting Supreme Court could possibly uphold them. But then I remind myself of three little words: Bush v. Gore. Seriously, all bets are off on this one.