March 23, 2012

Starting Monday, the Supreme Court has scheduled six hours of oral arguments over three days to consider the constitutionality of health-care reform, the most time given to a case in more than 45 years. We’re certainly in for a historic event — but it might be an entertaining one, too.

Oral arguments are always theatrical: The lawyers stand only a few feet from the justices, who loom above them on a curved bench, and they are barraged with so many questions that they often have trouble completing a sentence. The hearings are also an opportunity for the traditionally secretive Supreme Court to cut loose. In fact, the Roberts court is known as a “hot bench” — not a reference to the unusual sexiness of the justices but to the fact that eight of the nine are unusually chatty during oral arguments (Justice Clarence Thomas hasn’t uttered a word since 2006). Even though the justices rarely change their minds during oral arguments if they already have strong views about a case, the hearings can clarify their thinking, offer some lively give and take, and occasionally lead to humor.

So, will the oral arguments over health-care reform produce some laughs? Here’s a preview of what might transpire when the commerce clause becomes a punch line.

Justice Antonin Scalia

According to a 2010 study in the Communication Law Review, Scalia is the funniest member of the court, based on how many laughs the various justices have elicited in the courtroom. But his wit sometimes has a sharp edge. In 1988, when a lawyer fumbled for the answer to a question, Scalia exclaimed, “When you find it, say ‘Bingo!’ ”

Expect some zingers from Scalia in the health-care argument, perhaps focused on the not-so-side-splitting subject of whether Congress has the authority to require people to buy health insurance as part of its power to regulate interstate commerce. Imagine, for example, the following exchange:

Solicitor General Donald Verrilli: “In 2005, Justice Scalia, you held that Congress has the power to prevent California from authorizing people to grow marijuana for their own use. Surely, the decision not to buy health insurance has a far greater impact on the economy.”

Justice Scalia: “Depends on what part of California you’re from.”

Justice Stephen Breyer

Breyer’s jokes often follow a long question identifying the hardest issue in the case. He cares about legislative history and may focus on a striking irony in the health-care law briefs: During the debate over the legislation in Congress, Republicans insisted that the mandate to buy health insurance should be considered a tax, and Democrats countered that it shouldn’t. The moment President Obama signed the bill, though, both sides rushed to court to claim the opposite: Democrats now insist that the mandate is absolutely a tax (and therefore authorized by the taxing clause of the Constitution), and Republicans are equally confident that it’s not.

This debate is also relevant to whether the court has the power to hear the case in the first place. If the mandate is a tax, according to a 1867 law, litigants may have to wait until it goes into effect in 2014 to challenge it. If Breyer can get a laugh out of the “is it a tax?” debate, he deserves to be promoted to funniest justice.

Chief Justice John Roberts

All eyes will be on Roberts to see whether he is inclined to interpret the commerce clause of the Constitution as narrowly as he did in an opinion that gave rise to one of his most memorable one-liners as an appellate judge. In 2003, Roberts dissented from a ruling holding that the federal government could use the Endangered Species Act to prevent development on the habitat of the arroyo toad. He said the federal law couldn’t be applied to “a hapless toad that, for reasons of its own, lives its entire life in California.” Verrilli will try to convince Roberts that the interstate economic effects of thousands of uninsured sick people are far greater than those of the hapless toad, all the while avoiding the word “toad.”

Justice Anthony Kennedy

As the crucial swing vote, Kennedy is most frequently flattered in Supreme Court briefs. Some libertarians hope that he will strike down the health-care mandate by invoking the same right to privacy that he recognized when he reaffirmed Roe v. Wade in 1992. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy wrote; Scalia later ridiculed this as the “sweet mystery of life” passage. For Scalia and the other conservatives, Roe v. Wade is the root of all constitutional evil. So if Paul Clement — who will argue before the court for the health-care law’s challengers — wants to appeal to Kennedy without alienating the other conservatives, he may try to murmur “sweet mystery” so quietly that only Kennedy can hear it.

Justices Elena Kagan
and Sonia Sotomayor

These justices weren’t yet on the court during the period covered by the 2010 laughter study, but Kagan may have her eye on Scalia’s “funniest justice” title. She delivered the best one-liner of the current Supreme Court term. Noting that the Federal Communications Commission had interpreted its TV indecency policy to allow the cursing in “Saving Private Ryan” and the nudity in “Schindler’s List,” she said: “It’s like nobody can use dirty words or nudity except for Steven Spielberg.”

It will be hard to top the “Spielberg exception,” but perhaps Kagan can make something of the “Romney exception” — namely, the fact that the same arguments about the economic effects of self-insurance that Mitt Romney used to justify health-care reform in Massachusetts are the ones that lawyers challenging the Affordable Care Act are rejecting before the Supreme Court.

Sotomayor has made her mark in oral arguments and in recent separate opinions by wondering aloud whether long-established Supreme Court doctrines should be reexamined. During arguments in the Citizens United case in 2009, she suggested looking again at the idea that corporations are people. “There could be an argument made that that was the court’s error to start with,” she said. In the health-care argument, perhaps Sotomayor will press the government to explain why, if corporations are people, they can’t be forced to buy health insurance, too.

Justices Ruth Bader
Ginsburg and Samuel Alito

Though not prone to punch lines, both are respected by lawyers for asking the most technically difficult questions about a case. Ginsburg, who once taught civil procedure, may be especially interested in the complicated question of whether, if the court strikes down the individual mandate, it should grant the government’s request to wait for future cases to decide whether other provisions should be struck down as well.

Alito may be interested in the question of whether the expansion of Medicaid unconstitutionally coerces the states by threatening them with the loss of federal funds.

Justice Clarence Thomas

Thomas is considered the justice most likely to strike down health-care reform. He alone among the current justices has signaled willingness to overturn a landmark 1942 case in which the court allowed Congress to regulate a farmer’s cultivation of wheat in his own back yard for his own use. Thomas also ranks as the least funny justice, since he hasn’t asked a question at an oral argument for the past six years. (Still waters may run deep, but they don’t run funny.) Nevertheless, he has been known to speak when he cares passionately about an issue, as he did in a 2002 argument about a Virginia law banning cross-burning.

Lucky ticket-holders will be waiting eagerly to see whether Thomas can restrain himself from leaning forward in his chair, pounding the bench and exclaiming, as those challenging the law have asked: “If the government can force you to buy health insurance, why can’t it force you to buy broccoli?”

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of the New Republic. He is also an editor of “Constitution 3.0: Freedom and Technological Change.”

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