What Ryan Malphurs found is not likely to comfort supporters of the Patient Protection and Affordable Care Act, but little has since the court concluded three days of skeptical constitutional consideration. The court’s decision could come as early as Monday and almost surely by the end of June.
When the ruling arrives, the study will provide researchers with another piece of evidence as they try to answer an old question: how much of a justice’s actions at oral argument are predictive of his or her decision, and how much of it is playing devil’s advocate.
Fans of the health-care act must hope that it is the latter.
The two justices who are thought to be most in play in deciding whether the law is a constitutional exercise of Congress’ power are Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. Both were overwhelmingly skeptical of the law in their questioning, Malphurs found.
Kennedy, considered the pivotal justice in almost all of the court’s ideological conflicts, used about three-quarters of his questions and comments to challenge Solicitor General Donald B. Verrilli Jr. and the other government lawyers defending the law.
Roberts challenged the pro-health-care-law position 44 times during the hearings, compared with 14 statements or questions that Malphurs deemed confrontational to those opposing the law.
Overall, each side received about the same number of challenging statements and questions from the bench. But that is only because the ideological wings of the court played their expected parts.
On the liberal front, Justice Sonia Sotomayor directed 86 percent of her challenging statements or questions to the lawyers opposing the health-care act, followed by Justices Elena Kagan (81 percent), Stephen G. Breyer (77 percent) and Ruth Bader Ginsburg (70 percent), Malphurs found.
On the conservative side, Justice Samuel A. Alito Jr. directed 95 percent of his challenging questions toward the government’s lawyers, followed by Justice Antonin Scalia at 87 percent, Kennedy at 80 percent and Roberts at 76 percent.
Justice Clarence Thomas, as is his custom for years now, did not ask questions. His colleagues more than made up for it.
Malphurs found that questions and comments from the justices consumed almost three hours, about as much time as the advocates had. Scalia spoke most often, followed closely by Sotomayor. Roberts was third.
Breyer spoke up less often, but made up for it with customary lengthy hypotheticals and complicated set-up questions. Malphurs found that, over the three days, Breyer spoke for about 30 minutes, more than any other justice.
Malphurs and colleague L. Hailey Drescher spent about 2 1
2 months on the project, which Malphurs ultimately labeled “disheartening.”