Bad omen for health care law: Many comments from the justices

March 30, 2012
By David Lauter, Chicago Tribune

How well can Supreme Court votes be predicted by what justices say in oral arguments? The statistics hold up pretty well, and offer gloomy tidings for the Obama administration and its health care law.

Reporters and analysts who cover the court approach predicting the justices in various ways – some more confident in their judgment than others. But, as with so many things in life, researchers actually have studied the question. Their finding backs up a long-standing intuition of lawyers and experienced journalists alike: If a justice keeps interrupting you with questions, your side is in trouble.

The possible reasons vary. One prominent theory is that justices (and judges on the courts of appeals), who, after all, come to oral arguments having already read the briefs and often with their minds fairly well made up, offer comments in oral arguments more in an effort to persuade their colleagues than to elicit information from the lawyers.

Several studies have looked at the question, including one by Prof. Lee Epstein of USC law school, William M. Landes of the University of Chicago and Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals, based on statistical analysis of Supreme Court oral arguments from 2004-2007.

Their conclusion: “The number of questions and the total words in question … provide a reasonable predictor of most Justices’ votes,” the clearest exception being Justice Clarence Thomas who, alone among his colleagues, almost never speaks during the court’s arguments.

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