There’s much hand-wringing today from liberals regarding the oral arguments for the Health Care Cases, with Jeffrey Toobin calling the oral argument a “train wreck” for liberals, and Dahlia Lithwick fairly pessimistic about the affair.
It’s worth asking, though, whether these oral arguments will matter at all. In smaller cases, the Court may actually care about the quality of arguments floated at oral argument, in order to better define the contours of the case for them. Let’s not kid ourselves; the Justices didn’t need to ask any questions today to get the answers they were looking for.
That’s not to say that oral arguments don’t show some sign of the arguments to come, but that’s only the case if the lawyer is totally blindsided by the arguments. For example, in United States v. Lopez, the first case since the New Deal to actually limit Congress’s Commerce Clause powers, everyone assumed that the case, which involved Gun-Free School Zones, was a no-brainer. After all, no one had challenged Commerce Clause power seriously in 60 years. But then, in the first few minutes, Justice O’Connor (the then swing Justice) asked then-Solicitor General Drew Days whether there were any limits to Congress’s Commerce power. It was a shock at the time, because everyone assumed it was a settled question.
By the time of the Health Care cases, these issues are well-known and in the open, so when Solicitor General Verrelli got the question today, he was ready with responses, even though commentators found his performance wanting.
My point is that from oral argument alone, particularly in cases where the stakes are as high as this, you can understand almost nothing. This is the grand theater of the Supreme Court, but honestly, the operation of the Court is behind closed doors and won’t really be known for a decade or so (or more).
Justice Thomas is often criticized for not speaking during oral arguments, but he’s just not willing to acknowledge that it’s mostly a sham. Justice Thomas knows he won’t learn anything from oral arguments, and that much of it is about showing off for the Justices, not about developing theories of law.
We agonize over and parse the oral arguments because that’s all we have. Tea leaf reading must occupy us while the Supreme Court does the debating in chambers.
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