ObamaCare at the Supreme Court: Day 3 Recap

Sorry to be running late with this post concerning the final day of argument at the Supreme Court yesterday, but I wanted to again pass along the post by my friend Hans von Spakovsky at the Heritage Foundation who’s been following the hearings in DC.

There’s been lots of talk by pundits and prognosticators about how the seeming skepticism expressed by the Justices during oral argument means that the ObamaCare law will inevitably be struck down.  I disagree.  Not because I believe it will be upheld, but rather because I believe there’s no way to tell much of anything simply by listening to the questions asked by Judges during their hearing of an appeal.

Mind you, while some of the questioning in this particular case has been unusually illuminating, I’ve been involved in numerous appellate hearings, many of which occurred while I was “on the inside” as a law clerk working for Judge on the federal Sixth Circuit Court of Appeals.  And based on my experience, I can tell you that a Judge’s questioning is often just that:  questioning.  It doesn’t necessarily indicate an opinion one way or another.  Indeed, sometimes the toughest questions are not from a Judge trying to signal what side he/she is on, but rather from a Judge who is genuinely trying really hard to make up his/her mind, and perhaps playing devil’s advocate or trying to rule out any doubts they might have.

Moreover, in this case, the legal theories could make for some interesting combinations of opinions by the Justices.  Some of the most conservative members of the Court, for example, may be inclined to allow their preference for judicial restraint to trump their misgivings over possible constitutional issues withe ObamaCare.

The best prediction is to simply stay tuned.  The Court’s Term will be over in a few weeks, and the latest that their rulings are handed down for a particular Term are usually in June.  So, we’ll know pretty soon what the answer is.

No Comments

Post a Comment