Yesterday’s Supreme Court arguments on the Affordable Care Act seemed to cause a bit of a panic by progressives. We received a little perspective from an attorney friend who is a member of the Supreme Court Bar that made us feel a bit better. Here is part of his email:
I agree that liberals seemed to be in a bit of a panic. I think a few things happened that made things appear worse than they are.
First, the Solicitor General didn’t do a very good job. I listened to the arguments, and the Solicitor was clearly nervous and not particularly forceful in responding to predictable but hostile questions from Alito and Scalia. It’s always good to remember the old military adage that nothing is ever as good or bad as the first reports from a battle. Here, the relatively poor performance of the SG created a bit of an exaggerated context, as the first reporters and lawyers who rushed out of the arguments before they were completed filed reports and blog posts suggesting that the law was in trouble (Scotusblog, I’m looking at you!). This became a sort of early conventional wisdom, and led to some pretty poor and hyperbolic reporting (like Toobin on CNN calling the arguments a “trainwreck”) that was clearly influenced too much by the style and tone of the early arguments.
Second, arguments in the Supreme Court really don’t matter too much. Briefs are much more important, and the Justices have a pretty good idea about how they think of the case long before arguments start. I always caution clients not to ever read too much into how appellate arguments go. I remember one case I argued before a state supreme court. The other side has hammered with hard questions, and I barely received any questions. I felt pretty good coming out of the argument, but I ended up losing a unanimous decision.
Finally, I didn’t hear much in the arguments that changed how we should think about the case. Did we really expect otherwise? The Court’s most conservative members – Thomas, Scalia, and Alito have shown a strong willingness to abandon precedent for ideological purposes. I don’t think we should ever have seriously thought they were ever going to vote to uphold the law, and the arguments just confirmed this view. The swing votes on the Court remain Roberts and Kennedy – which is exactly what we thought when we learned that the Court would take the case.
So . . . don’t panic. Take a deep breath. Get used to waiting. This case is like almost every other case before the Court – we have no idea how it will turn out until the Court issues a decision.