** UPDATED at 5:51PM on 11/14/11 to address questions about what the Court’s oral argument grant may signify regarding its likely decision on the merits
As SCOTUSblog reports, and to nobody’s surprise, this morning the Court granted cert. on challenges to the Affordable Care Act’s individual mandate and Medicaid expansion provisions.
The Court also allotted 5.5 hours for oral argument. What are we to make of this independently remarkable decision? In this post, I argue that the Court’s grant of extensive oral argument time is mostly, though not entirely, about show rather than substance
As Lyle Denniston notes at SCOTUSblog, 5.5 hours appears to be a modern record — exceeding even the grant of four hours for argument in McConnell v. FEC. It vaguely brings to mind the classic arguments of the Court’s early history, where such famous advocates as Daniel Webster and William Pinkney dazzled the Court with their oratory and pressed their legal cause for several days before yielding the lectern to their adversaries (At Balkanizaton, Gerard Magliocca also sees an analogy to the days of Daniel Webster). In Gibbons v. Ogden, oral argument lasted five (presumably exhausting) days. Although such arguments could be “excessively prolix and tedious,” Justice Joseph Story explained that the Court allowed them because, by the end, “the subject is exhausted, and it is not very difficult to perceive . . . where the press of the argument and of the law lies.” Story reports that Chief Justice Marshall was therefore “solicitous to hear arguments, and not to decide causes without [hearing] them.” Marshall not only “courted argument, nay, he demanded it.”* On occasion, one or another Justice might even be moved to tears by the beauty or emotional force of an advocate’s presentation.
Nowadays, oral argument occupies a more mechanical role in the life of the Court. Lawyers usually enjoy only a half-hour to press their complex cases before one of the hottest benches in recent memory (indeed, Chief Justice Roberts has lately taken to playing traffic cop as his colleagues seek their pound of flesh, try to rehabilitate a wounded ally, or simply ignore the attorney while addressing each other). Argument-less summary reversals, often of Sixth or Ninth Circuit habeas opinions, flow freely from all nine chambers (though per curiams are ordinarily favored for this part of the Court’s docket), suggesting that the Court feels comfortable ditching argument entirely for at least some cases. And, though a debate rages amongst academics over the worth of oral argument, it can be hard to escape the occasional sense that Justice Thomas’s famed silence best captures the extent to which the Justices’ opinions are actually changed by argument — particularly in major cases, where increasingly extensive briefing by the parties and amici, detailed research by the Justices’ clerks, and the Justices’ strong priors may bear most of the explanatory weight with respect to ultimate voting patterns (some political scientists would even have us look at the party affiliation of the appointing president, and little more, in making such predictions — a point strengthened by the fact, recently discussed at Slate, that “[f]or the first time in a century, the Supreme Court is divided solely by political party”).
Indeed, as Dustin argued on this blog back in May, even though some scholars see oral argument as important at least part of the time (see, e.g, this comment by Orin Kerr responding to a post by Adam Chandler), it is not clear that heavy judicial reliance on oral argument would be a good thing: “oral argument is a brief and relatively unsystematic exploration of the issues,” “the lawyers who represent private parties are not equally skillful,” and “the interests of all of the other individuals who might be affected by the Supreme Court ruling in a given case are usually not adequately represented by one particular party in a given suit.” Dustin’s point may occasionally hold for the Government as well as private parties. For instance, Deputy Solicitor General Malcolm L. Stewart’s stunningly ill-conceived suggestion in Citizens United that the United States can ban books — a stance from which Solicitor General Elena Kagan rightly distanced herself at rehearing — was widely thought to have played an important role in the ultimate disposition of the case (or at least the public optics), even though that statement almost certainly did not represent the actual views of the Department of Justice and even though a question of such importance as the constitutionality of a federal law should not turn on tactical errors by counsel during a firestorm of questioning.
In this light, one must wonder why the Court decided to hear 5.5 hours of oral argument on aspects of the Affordable Care Act’s constitutionality (and the Court’s own jurisdiction to hear the case under the Anti-Injunction Act). Was this merely an act of high drama commensurate to the perceived importance of the decision – a spectacle of sorts, a signal to the public that the Justices are taking the matter super duper seriously so that, whatever their final decision may be, nobody can say that they didn’t spend enough time on the matter or treat it carefully? Will hours of argument over the individual mandate provide anything more than a chance for the conservatives to tease out that crucial “gotcha” sound-bite from the Solicitor General, who will presumably face staggering pressure to identify a “limit” on the scope of congressional power under the Commerce Clause (a dilemma reminiscent of the inadequacy of the Government’s response to that same question in US v. Lopez). Does anybody seriously believe that the Justices’ minds won’t be made up almost entirely on the basis of the briefs, their own research, and their varied predispositions?
Although this is, to a certain extent, a general criticism of oral argument, I believe it applies with particular force here because of the unusual grant of argument time, the undoubtedly comprehensive briefing that will soon deluge the Court, and the strong role that various judicial “priors” regarding the scope of federal power are likely to play.
This is not to prophesy that oral argument will make no difference. The ACA challenges present an unusual situation, since the Court faces four semi-distinguishable and individually complex questions. Even Justices who agree on the result for each issue may discover a surprising measure of variation in the reasons for why any particular outcome is preferable, which might demand an unusually strenuous effort at coalition building by any Justice keen to write an opinion explaining their views on jurisdiction, severability, the Tenth Amendment, the General Welfare Clause, the Commerce Clause, or the Necessary & Proper Clause. The sheer number of interconnected questions and the multitude of means by which the Justices could reach their desired ends, coupled with deficiencies in the ordinary practices of Conference (short discussions that are not generally thought to provide substantial opportunities for the hammering out of complex positions), might thus render this oral argument especially important as a space in which Justices can coordinate views, outline possible lines of reasoning to mutually agreed-upon ends, and preview their strategic considerations. If 5.5 hours of argument helps to avoid a blizzard of seriatim opinions, then lower court judges, casebook writers, and future generations of law students will be forever grateful that the Court took the extra time to sort out its views.
Oral argument will also allow the Justices an opportunity to shape public perceptions of the constitutional merits and provide them with an initial chance to publicly hone reasoning and rhetoric developed far in advance. Finally, 5.5 hours of argument can generate a particular kind of appearance about the Court’s decisionmaking process that, though it may not comport with the actual effect of oral argument on the Court’s essential function of deciding these historic cases, is potentially valuable to the Court’s legitimacy and institutional credibility.
That said (and perhaps I am unduly cynical), as talented as Paul Clement and Donald B. Verrilli, Jr. may be, I ultimately cannot help but suspect that this decision to grant 5.5. hours of oral argument — though undoubtedly welcome news to the media, the advocates, and folk like me who delight in these sorts of dramatic gestures by the Court — is essentially more about show than substance. I suppose one or another Justice might display a surprising sympathy, but it seems quite likely that at least a few Justices will say mysterious things, we will all wonder what they mean, and then a few months later we’ll all read a decision that, though perhaps sharpened on the margins by oral argument, will essentially be decided long before those 5.5 hours even begin.
One final note:
I am similarly skeptical of the notion that we can read very much into the Court’s oral argument grant. As Michael Dorf notes at Dorf on Law, though one might initially worry about the Court’s decision to focus so much time on severabilitly (90 minutes), “it’s possible that the separate grant on severability responds to just one or two Justices who take a special interest in the question” (i.e. Justice Thomas). Dorf then suggests, however, that the lengthy argument will forcefully impress on Justice Kennedy that this is an especially serious, substantive decision — and will thus make him more likely to vote in favor of upholding the individual mandate. My intuition is that all of the Justices must be well-aware of the importance of the case, and that extended time is just as likely to expose the dangers of the Government’s slippery slope as it is to impress upon the Court a need for caution when meddling with major legislative schemes.
At the Volokh Conspiracy, Orin Kerr finds a different message in the argument grant: “The Court’s decision to give these issue so much oral argument time suggests to me that at least some of the Justices see these cases as extraordinary, likely a necessary step if the Court is to decide the cases in an extraordinary way.” Kerr emphasizes that he still thinks “it’s quite unlikely that the Court will strike down the statute,” but sees the grant today as a “hopeful sign for the challengers.” This is a very interesting suggestion. But it is not immediately clear whether, in the eyes of many Americans, upholding the ACA or striking it down would be the more extraordinary decision — suggesting that the Court, as I argue above, may simply be keen to put on a display of argument and procedure commensurate to the publicly-recognized importance of the issue, all in an effort to bolster the perceived legitimacy of its ultimate decision (whatever that decision may be). Or the Justices may just be eager to test out potential voting patterns, sharpen particular arguments, test the limits of each side’s claims, etc. In any event, the fact that some number of Justices see the case as a potentially extraordinary opportunity to strike down the ACA does not necessarily mean that five Justices feel that way; one might even speculate that some anti-ACA Justices who worry about being on the losing side pushed for the extra argument time so that they’d have an additional chance to advance that view before their peers on the bench (with the assistance of friendly counsel and by pushing the Government’s attorneys to a denial of Commerce Clause limits that will discomfort their undecided colleagues).
For these reasons, notwithstanding the understandable temptation to read the tea leaves of today’s cert. grants, I am reluctant to think that we know much more today than we knew yesterday about the individual mandate’s likely fate before the Supreme Court.
* Joseph Story, A Discourse Upon the Life, Character, and Services of the Honorable John Marshall, in 3 JOHN MARSHALL: LIFE, CHARACTER AND JUDICIAL SERVICES 377 (John F. Dillon ed., 1903).