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Voting-Rights Surprise at High Court May Foreshadow Health Care

By Greg Stohr
June 07, 2012 12:01 AM EDT 34 Comments
Skeptical questions from Chief Justice John Roberts, seen here, and Justice Anthony Kennedy, during arguments in March, suggested they may cast pivotal votes against the health law, Obama’s signature domestic achievement.
Photographer: Tim Sloan/AFP/Getty Images
Skeptical questions from Chief Justice John Roberts, seen here, and Justice Anthony Kennedy, during arguments in March, suggested they may cast pivotal votes against the health law, Obama’s signature domestic achievement.

When U.S. Supreme Court justices picked apart the government’s arguments in defense of President Barack Obama’s health-care overhaul, they buoyed the hopes of the law’s opponents that it would be ruled unconstitutional.

A 2009 challenge to the landmark 1965 Voting Rights Act offers a cautionary note.

In both cases, the justices repeatedly interrupted as the administration made its case. They injected comments and posed questions that pointed toward a court-ordered upheaval.

“It sounded like the justices were going to blow away Section 5,” recalled Theodore Olson, who was the top Supreme Court lawyer for President George W. Bush, referring to the part of the Voting Rights Act that requires some states to get federal clearance before changing their rules.

Two months later, the court left the law intact on an 8-1 vote. The justices struck a compromise that let them avoid a direct ruling on the constitutional challenge to the measure.

As the high court prepares to rule by the end of this month on health care, the voting rights case underscores the hazard of predicting the outcome of Supreme Court cases.

Skeptical questions from Chief Justice John Roberts and Justice Anthony Kennedy, during arguments in March, suggested they may cast pivotal votes against the health law, Obama’s signature domestic achievement. The law would expand insurance to at least 30 million people and transform an industry that makes up 18 percent of the nation’s economy.

Veteran Supreme Court advocates say there are no guarantees, citing previous cases involving professional golf and cigarettes.

Can’t Predict

“There is no way to predict,” said Deanne Maynard, a Washington lawyer at Morrison & Foerster LLP who has argued 13 Supreme Court cases.

Even if the courtroom questioning reflected the justices’ views at the time, much can change over the course of three months of opinion writing and rewriting.

The justices have a range of options in the health-care case. They could uphold the law, overturn it or strike down only the requirement that people get insurance or pay a penalty, along with connected provisions.

By one measure -- one Roberts himself has used -- the court is set to invalidate at least the insurance requirement.

During two hours of debate on that rule on March 27, the justices directed the bulk of their questions at U.S. Solicitor General Donald Verrilli, the administration’s top Supreme Court lawyer. The justices interrupted Verrilli during his presentation 102 times, compared with 88 times for the two lawyers arguing against the law, the court’s official transcript shows.

Roberts Study

That data may be significant, according to a small-scale study Roberts conducted in 2004, when he was a federal appeals court judge. Roberts, who argued 39 Supreme Court cases before he became a judge, looked at 28 arguments from two high court terms and found that in 24 of them, or 86 percent, the side that was asked more questions lost the case.

“The secret to successful advocacy is simply to get the court to ask your opponent more questions,” Roberts wrote in a law review article adapted from a speech he gave on Supreme Court arguments. More comprehensive studies have reached similar conclusions.

The chief justice himself was one-sided in the health-care case, interjecting 23 times during Verrilli’s hour on the insurance requirement and only seven times as opponents of the law made their arguments. Kennedy interrupted Verrilli six times, compared with four times during the other side’s time.

Repelling Elephants

Roberts told Verrilli the health plan would “require people who are never going to need pediatric or maternity services to participate in that market” by getting insurance to cover that type of care. Kennedy said the law “changes the relationship of the federal government to the individual in a very fundamental way” by forcing people to buy a product.

Similarly, the voting rights case looked bad for the administration after the April 2009 argument. Roberts questioned whether the so-called preclearance requirement still made sense after 44 years, given that only 0.05 percent of proposed voting changes failed to win Justice Department approval.

When Neal Katyal, the administration’s lawyer, said those numbers showed that Section 5 was deterring discrimination, Roberts likened the argument to a whistle designed to keep away elephants.

“Well, there are no elephants, so it must work,” Roberts said.

‘What Happened?’

In the end, Roberts wrote the court’s opinion leaving the Voting Rights Act intact even as he pointed to “serious constitutional questions” about it. The court ducked the primary issue by saying the Texas utility district involved in the case could seek an exemption from the preclearance requirement.

The decision was a stunner, according to Olson, now a lawyer at Gibson Dunn & Crutcher LLP in Washington. “Everybody was saying, ‘Wow, what happened there?’” he said.

It was hardly the first time court watchers were confounded by a ruling that didn’t track what had taken place in the courtroom. Roy Englert, who has argued 20 Supreme Court cases, points to one in 2001 that tested whether the U.S. PGA Tour could be forced to let Casey Martin, a disabled golfer, use a cart during tournaments.

“I and I think lots of other people counted seven votes for the PGA Tour” after the argument, said Englert, a lawyer at Robbins Russell Englert Orseck Untereiner & Sauber LLP. “When the dust had settled, there were seven votes for Casey Martin and only two for the PGA Tour.”

‘Light’ Cigarettes

In a 2008 case, the justices suggested during arguments that they were going to bar smokers from suing over the marketing of “light” cigarettes. Kennedy and Justice David Souter both hinted that they read a federal cigarette-labeling law as precluding such suits.

“Most people thought that we were going to lose after the argument,” said David Frederick, a Washington lawyer at Kellogg Huber Hansen Todd Evans & Figel PLLC who argued on behalf of Maine smokers seeking to sue under a state consumer-protection law.

The court instead ruled 5-4, with Kennedy and Souter in the majority, that smoker suits could go forward.

“We were rather shocked because we did not see a 5-4 decision against us coming after that argument,” said Olson, who argued against the lawsuits on behalf of Altria Group Inc. (MO)’s Philip Morris USA unit.

With health care, traders on the online prediction market Intrade see a greater than 60 percent chance the court will strike down the mandate. That’s up from less than 40 percent in the days before the argument.

Those numbers reflect the uncertainties that flow even from an argument that may have leaned toward one side.

“Saying that one outcome or another is likely because of what happened at the argument would be the equivalent of predicting a jury’s verdict based solely on the closing arguments,” said Andrew Pincus, a lawyer at Mayer Brown LLP who has argued 23 Supreme Court cases. “There are many more important ingredients in the court’s decision-making process.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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