Health care act: Studies of oral arguments predict court will rule against reform this week

Washington —

Predicting the way the U.S. Supreme Court will rule, as soon as Monday, in the Affordable Care Act case has been called a fool's game. Yet as soon as their legs could carry them to the court's front steps, legal experts and journalists began declaring President Obama a loser in last March's oral arguments.

Now, as the nation awaits the courts decision in the most-watched case in a decade, two new predictions side with that hair-trigger assessment.

A poll of former Supreme Court clerks and lawyers who have argued before the justices found that many switched their initial prediction that the court would uphold the sweeping law. The oral argument performance led them to now speculate that there is a 57 percent chance the court will strike down the heart of the law, which requires virtually every American to buy insurance.

A second study, this one looking at the number and content of questions posed by justices during oral arguments, also theorizes that a split court will knock down at least parts of the law.

"The oral arguments moved the opinion of people who know the court," said American Action Forum President Douglas Holtz-Eakin.

Holtz-Eakin opposes the law. His organization wrote a brief asking the court to strike it down.

The arguments left him thinking his side might win and that the law was in jeopardy. Rather than trust his gut, he wanted a "snapshot of how true experts believe the Supreme Court will act on the future of American healthcare."

So he went back to his experts and asked them, in light of the arguments, how they thought the law would fare. Among them were 18 attorneys who argued before the justices and 38 former clerks — 11 who clerked the current liberal wing, 18 who clerked for the conservative justices and nine who clerked for swing vote Justice Anthony Kennedy.

The probability the purchase mandate would get struck down jumped from 35 to 57 percent.

One respondent said: "I feel like a dope, because I was one of those who predicted that the court would uphold the statute by a lopsided majority — maybe even 8-1. Although you never know, it now appears pretty likely that this prediction was way off."

The Supreme Court signaled from the start that the oral arguments in the health care case would be significant, devoting an extraordinary six hours to four central questions.

The justices had also been flooded with a record number of briefs in the case.

Typically, if the justices haven't read the submissions themselves, their clerks have them on the arguments. That's one reason that a number of justices have acknowledged that they often come into the arguments with a strong sense of how they're leaning.

"I have seen few victories snatched at oral argument from a total defeat the judges had anticipated on the basis of the briefs," Justice Ruth Bader Ginsburg has said. "But I have seen several potential winners become losers in whole or in part because of clarification elicited at oral argument."

The Affordable Care Act case was one in which that may very well have happened.

Minutes after the court let out, CNN legal analyst Jeffrey Toobin called the administration's case a "train wreck." He had previously predicted the law would be upheld.

Solicitor General Donald Verrilli had, by all accounts, an off performance. He spoke haltingly and struggled to make his case. But the justices also frequently cut him short before he could develop a point.

In his study of the oral arguments audio, Ryan Malphurs found that 41 percent of statements made by the administration lawyer lasted between 1 and 10 seconds.

"I wonder how many of Verrilli's critics could offer adept arguments in 10 seconds or less," Malphurs wrote in his analysis.

Malphurs, who studied the court's communication while earning his doctorate, has attended oral arguments in more than 80 cases. He did not attend the Affordable Care Act case, but studied the arguments by listening to the audio.

He logged the number of statements made by each justice and categorized them as challenging, assisting or neutral.

Supreme Court experts say justices will sometimes take a side in questioning to play devil's advocate or to try to get an answer they believe may turn a colleague to their view.

But Malphurs, who works as a jury consultant, found that many of the justices seemed to betray a clear bias in their questions, and sometimes an unwillingness to consider the other side.

"By challenging one advocate over and over, they begin talking themselves into their own psychological corner," he said.

Justices can also prevent a lawyer "from being able to articulate his or her opinion to the rest of the court to prevent other justices (from having) legitimate questions answered."

Malphurs dubbed Justice Sonia Sotomayor the "fairly godmother" because she offered more statements assisting one side — 14 for the government's lawyer — than any other

justice.

He called Alito the "not-so-fairest of all" because he spent 91 percent of his statements challenging the administration's case.

The liberal justices were less pointed in their questions overall. None devoted more than 61 percent of his or her statements to the pro-health care law side.

Perhaps most telling, Kennedy, thought to be the clear swing vote, devoted 73 percent of all remarks to challenging the law and 80 percent of all so-called challenging statements at the lawyer representing the government.

Malphurs is quick to say his study is not predictive. He calls it "indicative" instead.

But when a hedge fund manager who was planning to gamble $10,000 on the case's outcome called Malphurs to discuss his study, the researcher told the guy to put his money down on the court striking down at least parts of the law.

"If it were my money and I had the ability to put that money down, I would place that bet," Malphurs said.

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