"Gay Marriage Arguments Divide Supreme Court Justices"

So says the headline to this New York Times article.  The headline suggests that the prior to today the Supreme Court was not divided. Some evidence suggests the justices have divided on other issues before today.

Judge Posner is unstoppable. He cannot be stopped.

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

"Your best move is to curl up into a ball and wait for help."

Slate's advice on how to survive a kangaroo attack is here.  I hope this advice is better than Slate's predictions on Supreme Court rulings.

Clue or no clue?

In case you need some people who do not know who leaked the story about Chief Justice Roberts switching his vote in the Obamacare decision speculating on who leaked the story to CBS reporter Jan Crawford, the Atlantic Wire (and many, many others) has you covered.  Strangely, none of these articles mention the most likely suspect--

Some Pale Reflections of Jeffrey Toobin's Brilliance

Jeffrey Toobin, a noted Supreme Court expert and famed prognosticator, has an essay on the Obamacare case in the latest issue of The New Yorker. I have some thoughts in response to a few of his statements.

Does Teaparty.org agree with the New York Times as to why Chief Justice Roberts voted to uphold Obamacare?

The Drudge Report noted on Friday that Michael Savage, the host of a conservative radio program, blames epilepsy medication for Chief Justice Robert's decision to vote to find Obamacare constitutional.  Apparently some epilepsy medications cause "cognitive problems."  Mr. Savage apparently believes that cognitive problems are the most likely explanation for Chief Justice Roberts's decision.

Teaparty.org has a link to Mr. Savage's broadcast where he makes the claim. It also has the text of the full quote:

Let's talk about Roberts. I'm going to tell you something that you're not going to hear anywhere else, that you must pay attention to. It's well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts' writings you can the cognitive disassociation in what he is saying," Michael Savage said on his radio program this evening.

The site also links to a 2007 article that about Justice Roberts's epilepsy that ran in the New York Times. I was surprised that a conservative new media website was citing to an article by the "lamestream media" and suggesting that the New York Times knows what it is reporting about. Initially, I thought that if the a Tea Party website is linking to a New York Times article, then that article will discuss the cognitive problems caused by the epilepsy medication.

I am disappointed to report that the New York Times article does not mention cognitive problems.  In fact, the article does not report that the Chief Justice is even on epilepsy medication.  Instead, the article speculates that the Chief Justice might be on epilepsy medication because he has a couple seizures and the standard treatment for people who have two seizures is to get on the medication.  No one associated with treating the Chief Justice will talk about his treatment with members of the media. 

So, the answer to the question posed by my post is "no."

Did Judge Posner bury the lede?

Judge Posner's lastest thoughts about the Obamacare decision are up on Slate.  They are very interesting and I recommend you go there and read them in their entirety. 

However, the judge kind of buried the lede (assuming one can do that in an opinion piece) at the bottom of his post.  At the very end of, Judge Posner writes:

And speaking of dissenters: Would they have had the courage of their convictions had they been able to pick up a fifth vote? Or would they have been like the dog that barks ferociously when it's behind a fence, but open the gate and it slinks away timidly?

Yowza.  Nothing like telling four of the judges who review your decisions that you think they are probably cowards.

Torvik and Gillette are smarter than Klein and Toobin‽

The Supreme Court has upheld Obamacare.  Mr. Torvik and I were right on the result but wrong on whether Justice Kennedy would be in the majority.  I was right that Chief Justice Roberts would write the opinion (I do not believe Mr. Torvik made a prediciton on this point but maybe he did.  I am too lazy to look.).  Kennedy, Scalia, Thomas, and Alito filed a joint dissent so my prediction about the tone of Scalia's dissent is probably wrong. 

In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous.   Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.

Should public opinion matter to the Supreme Court

Slate's Dahlia Lithwick says the lesson of the Supreme Court's summary reversal of the Montana Supreme Court campaign finance decision is "that the sense of lingering public outrage over Citizens United—deserved or not—influenced the court not one little bit on this issue."  The articles headline (which I assume Ms. Lithwick did not write) is even more blunt:  "The court’s conservatives don’t care how much you hate Citizens United."

Setting aside the rather obvious point that nothing suggests that the justices who dissented in Citizens United care about how much people might dislike Citizens United, lesson Ms. Lithwick finds begs the question of should the Supreme Court care about the public outrage over its decisions. 

SCOTUSblog overreacts just a tad

Tom Goldstein, the force behind the excellent SCOTUSblog, has a post severely criticizing the RNC for creating the ad embedded below, which uses the audio of Solicitor General Donald Verrilli's rather infamous stumbling at the beginning of his argument in defense of the individual mandate:

Goldstein's criticism is that the audio is "doctored" because it plays the sound of Donald Verrilli drinking ice water and saying "excuse me" twice, when in fact he only drank ice water and said "excuse me" once. According to Goldstein, this is pretty much as bad as inserting "someone with the same voice as Verrilli saying, 'Mr. Chief Justice, we believe the individual mandate should be upheld because we hate the Constitution?'"

As political ads go, this strikes me as pretty tame. It's perhaps a bad sign when I have to use one of my parenting catchphrases here: "Toughen up."

But Goldstein does make a pretty good point, I think, when he argues that this kind of manipulation for political purposes is why the Supreme Court resists every effort to allow oral arguments to be televised:

the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings.  What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments?  Nothing at all.

Indeed, one needn't look far to find precisely that. For example, at one point Justice Scalia said that the young, healthy people who choose not to buy health insurance at current prices are "not stupid," the point being that they are making a rational calculation (perhaps right, perhaps wrong) that they would pay more in health insurance premiums than they are likely to pay for health services, so insurance is a bad deal for them. This is uncontroversial; it is the one of the main reasons that the law tries to force everyone to buy insurance: so that insurance companies can make profits while charging lower prices.

But in more than one article this statement has been twisted around to an assertion amounting to "if you are young and you pay for insurance, Scalia finds you 'stupid.'" Yikes.

Then there is this, from the New York Times:

But then came Justice Scalia’s now famous invocation of broccoli. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer “as succinctly as you possibly can.”

From this account, you would conclude that Justice Alito piled on and demanded a succinct answer to the famous and supposedly tendentious "broccoli question." But he absolutely did no such thing. Scalia raises the broccoli issue on page 13 of the transcript (and the 12-minute mark of the audio file):

Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

Mr. Verrilli gives his answer, and then there is some discussion. Broccoli is next mentioned on page 17, by Chief Justice Roberts:

That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either.

Shortly thereafter, the argument moves on to other variations on the theme.  Alito never asked a question during the broccoli part of the argument. Much later, Mr. Verrilli sets out what he (correctly, in my view) believes to be the fundamental question:

The question is, is there a limit to the authority that we're advocating here under the commerce power? And the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases.

It is at this precise point, after Mr. Verrilli raises the topic of what limit there is to the commerce power, that Justice Alito speaks:

Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? 

This is page 43 and the 45:30 mark of the audio file—a full 33 minuttes after Scalia had the gall to mention broccoli!

After all that, I urge you to go back and read the excerpt from the New York Times article and conclude for yourself whether the false impression it creates is more or less egregious than the false impression created by the RNC ad.

Anyhow, those are just a couple of examples. I've come across many other distortions from people who should know better, but I haven't the stomach to go back and find them.

If it is so obvious that Obamacare is doomed, why do they bother with a third day of hearings?

I first started reading Slate when I was in law school.  I don't recall how I found out about it, but the feature that caught my attention was "Supreme Court Dispatches."  The dispatches were a weekly feature that would provide a report on what happened at the Supreme Court oral argument that  week.  Eventually, the dispatches stopped coming out every week and now only come out on well-publicized cases.

I thought about the Supreme Court Dispatches yesterday when the various media reports came out about how Obamacare is doomed based on yesterday's oral argument.  For example, CNN legal analyst Jeffrey Toobin says that the individual mandate is "doomed" based on how the oral argument went.  Ezra Klien of the Washington Post suggested that the apparently inevitable striking down of Obamacare might not have happened if Justice Kagen was still Solicitor General.

Predicting how the Supreme Court would rule based on oral argument was a frequent part of the Supreme Court Dispatches.  It was also frequently wrong.  For example, when reporting on Fitzgerald v. Barnstable School Committee et. al., Dahlia Lithwick predicts that the poor kindergartner who was sexually harassed on a school bus is going to lose.  Then the opinion came out and the student won in a unanimous opinion.  Ms. Lithwick's colleague, Emily Bazelon, wrote a piece predicting that the employee in CBOCS West, Inc., v. Humpries, would lose his retaliation claim because the Supreme Court's "right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws."  The Supreme Court ruled 7-2 in the employee's favor.  Ms. Lithwick predicted that the "the most business-friendly Supreme Court in decades" would rule for big business in Wyeth v. Levine.  Instead, big business lost a 6-3 decision.  Ms. Lithwick also predicted that historians would use the case of Safford Unified School District #1 v. Redding as an example of  "not getting it" because the oral argument so badly for the student who was subjected to a strip search because she brought prescription-strength ibuprofen to school.  The student won a 8-1 decision.

The point of this post isn't that Ms. Lithwick, Mr. Toobin, and Ms. Bazelon are terrible at predicting what the Supreme Court will do (at least that is not the intended point).  Instead, my point is that it is silly to try to predict how a case will come out based on oral argument and people should ignore any predictions based on oral argument.  All oral argument does is demonstrate that some of the justices like to watch lawyers respond to tough questions (and make jokes).  Fans of Obamacare (the statute, not the word) should not despair that the law will be struck down and foes of Obamacare should not be too encouraged by the fact that the Solicitor General faced some tough questions.  I am biased, but I still think the best prediction on the outcome of the case was made almost two years ago.