Guessing how the Supreme Court will decide a case, based on the questions the justices ask of the lawyers, is a fool’s game. That’s why pundits can’t resist playing it.
Rarely has a case before the court attracted so much attention as this week’s arguments about Barack Obama’s health care scheme. Everybody is studying transcripts and accounts of which judge wiggled his eyebrows at whose lawyers, looking for hints, allusions, implications and insinuations, like Las Vegas oddsmakers searching for inside dope from the training camps on the eve of the Super Bowl.
The spectacle before the court brought out the sportswriter in every reporter, pundit and editorialist. Some think the game is over. The Los Angeles Times, designed for Southern California readers who wouldn’t mind running the country if they knew where the country was, reported flatly that “the Supreme Court’s conservative justices said Wednesday they are prepared to strike down President Obama’s healthcare law entirely.” Not “suggested,” but “said.”
That’s stop-the-press stuff, to be sure. But nary a conservative justice said any such thing. The questions asked by Chief Justice John Roberts and justices Antonin Scalia, Anthony Kennedy and Samuel Alito were sharp, but that’s what Supreme Court justices like to do. They’re reminders to the lawyers that “we’re upstairs, and you’re downstairs.” Supreme Court justices take their fun where they can find it.
Nevertheless, no sportswriter could miss the hints and cues that guarantee lively copy. If the government could require a citizen to buy insurance, what else could the government require a citizen to buy. “Are there any limits?” asked Mr. Kennedy, whose reputation as the court’s swing man — usually voting with the four conservatives and but once in a while with the four liberals — makes him the object of particular attention.
Mr. Roberts asked whether the government might require everyone to buy a cellphone, to be prepared for an emergency. And Mr. Scalia fretted that a citizen might be required to buy broccoli, which is said to promote regularity and healthy bowels, and thus an aid to good health, which in turn could restrain the cost of insurance premiums. You never know what the nanny will think of next. These questions led certain commentators to conclude that Obamacare is on life support, and the justices are about to pull the plug.
Jeffrey Toobin, who analyzes the court for CNN and New Yorker magazine, saw the sky falling at the end of the first of the three days of arguments. Or, more to the point, he foresaw Mr. Obama and his schemes perishing in a “train wreck.” The next day he ran his metaphor off the rails. “This still looks like a train wreck for the Obama administration, and it may also be a plane wreck.” (Shipwrecks were saved for another day.)
Mr. Toobin’s remarks reflected a dramatic reversal of mainstream media assessment of Obamacare’s prospects. The day before the arguments began, the consensus was that the president’s case was a slam dunk. Linda Greenhouse of the New York Times said the argument against the mandate “is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.” She concedes that the court may well decide otherwise, but that’s because she’s smart, and the court could be dumb.
Mr. Obama, once a law professor, is reaching for the panic button, too. He now refers to Obamacare as “a bipartisan bill,” even though not a single Republican voted for it. A White House press agent even refers to Obamacare as a “conservative idea.” But he insists the president is not working on a contingency plan. Not yet.
Justice Ruth Bader Ginsburg, who is better situated than mere pundits to take the temperature of her colleagues, suggested in her questioning that the court should perform a “salvage job,” not a “wrecking operation.” Throw out the mandate but leave the rest of Obamacare. Even the White House seems resigned to settling for disaster, if it can avoid catastrophe. Edwin Kneedler, the deputy solicitor general, told the court that it would be “extraordinary” for the justices to throw out the entire law, the clear implication being that trashing the mandate would be “ordinary” and OK.
“I still feel pretty confident about it,” Nancy Pelosi, the former House speaker, confided to reporters at the end of the remarkable week. “And if and when - this game is not over. In March Madness, what happens when your team doesn’t win one - well, wait a minute, let’s have the game.”
Yes, let’s. The Supreme Court will post the score in June. The sportswriting can continue.
• Wesley Pruden is editor emeritus of The Washington Times.