In 2009, Lee Epstein, William M. Landes and Richard A. Posner wrote a paper titled “Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument.” They start off by noting that the party who brings the case wins in 62 percent of Supreme Court cases. That’s one point for Verrilli, as the Obama administration petitioned the Supreme Court to hear the health care challenge.
Then, they analyze the number of questions that both the petitioner and defendant field from the nine justices. There, they find that that, if a lawyer gets questioned more heavily by the Supreme Court, his odds of winning fall.
When the petitioner is asked relatively fewer questions, his win rate increases from .62 to .71 (a 15 percent increase) and the respondent’s decreases from .38 to .29 (a 24 percent decrease). And if the petitioner is asked relatively more questions, his win rate decreases from .62 to .53 (a 15 percent decrease) and the respondent’s increases from .38 to .47 (a 24 percent increase). All these results are statistically significant.
I did a quick search through the transcript of Tuesday’s argument to get a sense of who fielded more questions. And it turns out to be — drum roll, please —Paul Clement, who represented the opponents of the individual mandate. It was, admittedly, close: 61 question marks show up in the section where Verrelli argued, compared to 67 in Clement’s testimony. But if the academic research is any guide, it could suggest that the odds aren’t as stacked against the White House on Tuesday’s hearing as some may think.