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It's All Politics
Fri June 29, 2012
Recent Rulings Show How Hard It Is to Predict High-Profile Court Decisions
Originally published on Tue July 3, 2012 9:59 am
Pessimism swept over advocates of the Affordable Care Act after oral arguments this spring seemed to go decidedly against the Obama administration. But the Supreme Court's ruling on Thursday — and its decision in another high-profile case this week — suggest oral arguments aren't as predictive of final outcome as some believe.
In both the health care and Arizona immigration law cases, some court watchers who had predicted one outcome reversed themselves when oral arguments didn't go smoothly for President Obama's solicitor general, Donald Verrilli.
Before oral arguments, many legal experts believed that the federal government would win its challenge to the Arizona immigration law — and that the individual mandate requiring people to purchase health insurance would survive.
Verrilli's defense of the health care law during oral arguments, described by some as stammering, prompted CNN legal analyst and New Yorker writer Jeffrey Toobin to declare the mandate dead: "This was a train wreck for the Obama administration," Toobin said after the arguments in late March. "This law looks like it's going to be struck down, I'm telling you."
People were listening, apparently: Predictions on Intrade that the health care law would be overturned jumped to nearly 80 percent.
A recent poll of former court clerks found that 57 percent thought the individual mandate would be overturned after oral arguments, a 22-point jump from when they were surveyed before oral arguments.
And according to The New Yorker, Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, went from saying there was a "less than 1 percent chance" the court would invalidate the mandate, to putting the odds at 50 percent.
Reaction after the health care arguments was similar to the dynamic in the Arizona immigration case, in which the performance of attorneys and a hard line of questioning from justices changed how many constitutional law experts, former clerks and journalists predicted the Supreme Court would ultimately rule. The Daily Beast's Adam Winkler writes:
"The justices were hostile and seemed unpersuaded by the White House position in both cases. [In the Arizona case] Justice Sonia Sotomayor ... an Obama appointee, told Obama's lawyer that his argument was 'not selling very well. Why don't you try to come up with something else?' "
The Supreme Court, in both cases, proved many prognosticators wrong, issuing nuanced rulings that largely represented victories for the administration. (Here are reactions from legal scholars, including some who acknowledged being stunned by the health care ruling, in a post by my colleague, Liz Halloran.)
"This is a day for Don Verrilli to take an enormous amount of credit, and for me to eat a bit of crow — because he won, and everyone should know that that argument was a winning argument, whatever you thought on it," Toobin said Thursday.
It's not just Toobin having to "eat crow," as he said. Various studies show legal experts are no good at predicting how the court might rule.
The Washington Post's Ezra Klein notes a study by Washington University's Andrew Martin that examined predictions during the tenure of Chief Justice William Rehnquist, including a time when the same nine justices worked together for a decade. It showed that experts did worse than computer models when it came to predicting rulings, and identified which types of cases experts in the field were the worst at guessing:
"They turn out to do the absolute worst on cases involving questions of 'economic activity,' which happens to be the crucial issue in the health reform challenge. It's the one area where the experts predicted the decision accurately less than half the time. In other words, a coin toss would make a better prediction model."
One of that study's co-authors, Theodore Ruger, who's now a professor at the University of Pennsylvania Law School, tells us the court headed by Chief Justice John Roberts, author of the health care ruling, makes it even harder to predict outcomes of high-profile cases. These nine justices have only been together for two terms.
"There's a little bit of flux here," Ruger said. "We still have Roberts finding his role as chief justice, and today's decision very much showed that. More simply, I don't think he writes that opinion if he was just another justice on the court. This was very much about the court not wanting to get in the way of Congress and not wanting to strike this down on the eve of an election. There are a lot of variables here."
The oral arguments did solidify some perceptions that were properly interpreted, including that both rulings would come from a divided court.
"But most of us focused on the individual mandate part of the [health care] oral argument, and it's remarkable for the court to base its ruling on an issue that was barely briefed at all — the tax issue," Ruger said. "In hindsight, this was such an unusual case that the clues were pretty muddy except that it was highly contested."
If it's difficult for humans to predict the outcome of a particular case, don't count on computers to do any better.
"Broad computer models are most useful for judging jurisprudence as a whole, given a number of years, to see patterns of judicial behavior. But they're much less helpful when judging individual high-profile cases," Ruger said.