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.”
Malphurs did his doctoral dissertation on ways the court can improve communications — a previous study was a sober-minded look at laughter during oral arguments — and he thinks the one-sided questioning threatens the public’s expectation of neutrality.
“Even at the highest level of legal thought where impartial consideration should be paramount and at a moment in time of such great importance — human bias and prejudice still dominate the justices’ interactions,” Malphurs wrote.
The justices would likely answer that they did not enter the hearings in a neutral state of mind because they had already consumed a record number of briefs. The hearings are a chance for them to test their tentative decisions and to try to influence the other justices. As Malphurs notes, Ginsburg and others have pointed out that in the vast majority of cases, what comes before oral arguments is most often the most important.
“I have seen few victories snatched at oral argument from a total defeat the judges had anticipated on the basis of briefs,” she said.
Most observers of the court — even reporters — can in most cases predict the final outcome by the tenor of questioning at oral arguments. Roberts, when he was an advocate before the court, did a study that showed the more questions your opponent is asked, the better your chances of victory.
But every term, there are surprises.
If the court upholds the Patient Protection and Affordable Care Act, it will immediately become the most prominent example of the exception that confirms the rule.
The funny bomb?
Speaking of laughter at the court, Ginsburg told an appreciative audience at the liberal American Constitution Society on Friday night that she once again has the distinction of being the “least-funny justice who talks.”
Her remarks from the bench this term provoked laughter only twice.
But she’s trying. She reminded the group of a case yet to be decided,
FCC v. Fox
, that concerns the government’s power to police the airwaves for indecency. The case was prompted by famous-for-being-famous celeb Paris Hilton dropping the F-bomb on a live television broadcast.
“The Paris Hiltons of this world, my law clerks told me, eagerly await the decision,” the 79-year-old Ginsburg told the audience.
“It is beyond my comprehension, I told my clerks, how the FCC can claim jurisdiction to ban words spoken in a hotel on French soil.”
Wait for it . . .