Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case. By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s federalist revolution. This may make the five-plus hours of oral argument little more than an exercise in legitimacy, the Court’s attempt to build political cover for itself as an institution by creating the appearance of controversy.
In fact, no matter how close the case ultimately comes out, the matter is probably already, for all intents and purposes, decided. It’s the rare oral argument that changes any judge’s pre-existing view of the merits, a point that’s probably particularly relevant in controversial, closely-watched cases. For judicial opponents of Congressional power, this is a day decades in the making. For proponents of the status quo — and make no mistake, the status quo would uphold the law — this is a chance to put to bed the conspiracy theories and legal fantasies that’ve animated the Tea Party for two years. The destination is already chosen; the rest is just the journey. But the journey does matter.
Sadly, the Court chose to shut out television cameras, squandering a valuable chance to educate the public about the nature of constitutional law, and constitutional decisionmaking. This means we’ll have to wait for transcripts, or live reporting from Court correspondents. When we start to hear reports, keep the following rules about appellate advocacy in mind —
- Infer from questions only carefully: if a Justice asks a question, it’s not always because he or she personally believe the question’s implications. Justices tend to use questions not to tip their hand as to their own beliefs, but to argue with their colleagues by proxy. So if we hear a “liberal” justice ask a question that implies that the individual mandate oversteps precedent, don’t assume their vote is lost.
- Watch who the lawyers are “targeting”: it’s widely believed in liberal circles that Kennedy, Roberts, and Scalia are all “gettable” votes to uphold the mandate. Winning Scalia would be an especially valuable political coup, since he’s widely viewed as more crazily conservative than he actually is (contrast that with Thomas, who actually is as crazy as people think). Arguments from ObamaCare’s proponents turning on Gonzales v. Raich, for example, can properly be viewed as attempts to convince Scalia, who upheld federal power in that case, that the mandate is necessary as part of a complex, otherwise constitutional regulatory regime.
- Don’t expect the Tenth Amendment to come up: as we’ve detailed extensively, the Tenth Amendment argument is just a non-starter. Every lower appellate court has agreed, and the only Tenth Amendment case in recent history, U.S. v. Printz, was written by Scalia, but concerns federal “commandeering” of state officers. That plainly does not apply.
- Look for clues from narrative: the most important part of appellate advocacy is issue framing. The Court already framed the questions (pdf), and therefore, the context of the debate. But how the advocates from their position is important, especially when we get to the individual mandate question. Look for lawyers to drop initial phrases like, “this is a case about…,” and ask yourself why they’ve chosen to frame an issue in one particular way.
Here, lawyers are in the strange position of framing a narrative maximum effect in sophisticated legal setting, and simultaneously for wider political consumption. Politically, conservatives will want to take an extreme position – “this is a case about the government straining the Commerce Clause to its breaking point” – but counsel will have to balance the hyperbole the public expects against a legally wiser, more tentative position. Remember that this is a Court that has never limited the Commerce Clause’s reach as a tool of pure economic regulation. And, more importantly, running to histrionics will immediately put the Court on the defensive. Even if they’ve already made up their minds, if he starts out by staking a far-right position, counsel could be in for a rough first ten minutes of arguments as the Court forces him back into line.
And lastly, remember, the course of argument may not be the best predictor for the Court’s eventual result. I’ve had judges feed me my best theory during argument, and otherwise appear to be on my side, only to lose the unanimously nine months later; and I’ve seen judges beat up on our opponent in argument, hard, only to beat up on us in the final opinion. Hard. Like lawyers, judges like to hear themselves talk, and more so than any other day, the nine justices are conscious of their audience.
Justin Levine, “Second Nature,” from the OST to Bloody Bloody Andrew Jackson.