And that’s a wrap on oral arguments at the Supreme Court in King v. Burwell. My colleagues will have some insightful analysis of the legal battle over the four words that could decide the fate of Obamacare for you in a bit. But for now I just wanted to offer a friendly public service announcement as reactions begin to flood Twitter and the rest of the Internet: Take the looming predictions about how the court will ultimately rule on the subsidy issue with a heaping of salt.
For proof of how SCOTUS watchers (and headline writers) can overreact in the wake of oral arguments, we have to look no further than the last time the high court heard a case that had the potential to decide the fate of President Obama’s health care law. After watching the first day of arguments in the 2012 blockbuster, Jeffrey Toobin famously declared that it was “a train wreck” for the White House. “This law looks like it’s going to be struck down,” the CNN legal expert and New Yorker writer said at the time. “I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong.”
Toobin was far from alone in making that assessment. But in the end, of course, the high court voted 5–4 to preserve the individual mandate and avoid delivering what would have likely been a death blow to the Affordable Care Act.
As you may remember, much of the immediate analysis was focused on Solicitor General Donald Verrilli, the White House lawyer tasked with saving Obamacare then, as he is again this week. Verrilli stuttered, stumbled, and coughed out of the gates during the March 2012 arguments, drawing an onslaught of criticism from court watchers and prompting serious handwringing from liberals. “Verilli seemed more like a nervous first-year law student than a respected advocate who had appeared before the court on 17 previous occasions,” declared the Daily Beast. Mother Jones went one step further, writing that Verrilli’s performance just might “go down as one of the most spectacular flameouts in the history of the court.” After the solicitor general’s argument and the rest of the day’s action, “the Obama administration better start preparing for the possibility of a future without the individual mandate,” warned the Huffington Post.
The assessments were more measured in the nation’s papers of record, but the takeaway was largely the same. The New York Times explained that “the available evidence indicated that the heart of the Affordable Care Act is in peril.” The Washington Post, meanwhile, reported that court’s conservative justices “appeared deeply skeptical” that the individual mandate was constitutional, “endangering the most ambitious domestic program to emerge from Congress in decades.”
My trip down memory lane isn’t to suggest that we can’t learn anything from listening to the court watchers, or by reading the transcripts ourselves. We can, and we should. (The 2012 case really was a nailbiter, as the arguments suggested.) There’s a good chunk of evidence to support the idea that the questions the justices ask—and how they ask them—during the arguments can help us predict how they will end up ruling. Still, as the last case made clear, the models we do have can only tell us so much. The rest we’ll have to wait for.
