Bad omen for healthcare law: Many comments from the justices

How well can Supreme Court votes be predicted by what justices say in oral arguments? The statistics hold up pretty well, and offer gloomy tidings for the Obama administration and its healthcare law.

Reporters and analysts who cover the court approach predicting the justices in various ways -– some more confident in their judgment than others. But, as with so many things in life, researchers actually have studied the question. Their finding backs up a long-standing intuition of lawyers and experienced journalists alike: If a justice keeps interrupting you with questions, your side is in trouble.

The possible reasons vary. One prominent theory is that justices (and judges on the courts of appeals), who, after all, come to oral arguments having already read the briefs and often with their minds fairly well made up, offer comments in oral arguments more in an effort to persuade their colleagues than to elicit information from the lawyers.

Several studies have looked at the question, including one by USC law professor Lee Epstein, William M. Landes of the University of Chicago and Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals, based on statistical analysis of Supreme Court oral arguments from 2004 through 2007.

Their conclusion: “The number of questions and the total words in question ... provide a reasonable predictor of most Justices’ votes,” the clearest exception being Justice Clarence Thomas who, alone among his colleagues, almost never speaks during the court’s arguments.

The least predictable member of the court in their study? That would be Justice Anthony M. Kennedy, who is often the swing vote in the court’s closely divided cases and was the justice most closely watched in the healthcare arguments.

So how do those observations apply to the healthcare arguments? Michael Evans, an associate professor of political science at Georgia State University, analyzed the transcript of the second day of the arguments, which focused on the requirement that all individuals buy health insurance, the so-called individual mandate. He counted the words directed at Solicitor General Donald Verrilli, the Obama administration’s advocate at the high court, and those directed at the two lawyers arguing against the law, Paul Clement and Michael Carvin.

The statistics illustrate the stark divide on the court -- the four Democratic appointees, Justices Elena Kagan, Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg -- all aimed their comments at Clement and Carvin by a heavy margin. Three of the five Republican appointees, Chief Justice John G. Roberts Jr. and Justices Samuel Alito and Antonin Scalia, were equally one-sided, aiming the overwhelming majority of their comments at Verrilli.

Kennedy was somewhat less skewed, but was far closer to the conservative side, with comments to Verrilli outnumbering those to Clement and Carvin by a 2-1 margin.

The statistics also support another observation court watchers have made -- Breyer is by far the wordiest justice.