Predictions vs. expectations at the Supreme Court

Updated
 
An artist rendering from last week's high court deliberations.
An artist rendering from last week's high court deliberations.
Associated Press

The week after the health care drama at the Supreme Court, some on the right are so confident about the outcome, they see no reason to delay the taunting. They’ll engage in some pre-decision chest-thumping now, setting the stage for more vigorous and more obnoxious celebrations over the summer.

Here, for example, is John Podhoretz mocking those who expected the administration to prevail at the high court (via Jon Chait).

The panicked reception in the mainstream media of the three-day Supreme Court health-care marathon is a delightful reminder of the nearly impenetrable parochialism of American liberals.

Jay Cost was slightly more circumspect, but argued along similar lines.

The Court might very well uphold the law, but it will not nearly be the slamdunk that almost all liberals thought it would be. Why did the left get it so wrong?

It strikes me as the wrong question, in part because it’s based on a flawed premise. For one thing, we don’t yet know the outcome, and if there’s a 6-3 ruling upholding the law, many of the analyses of the last week are going to appear rather foolish.

For another, it wasn’t just “the left” that expected the justices to reject conservative arguments. Conservative federal judges upheld the health care law before the case reached the Supreme Court; Reagan administration officials saw the dispute as a no-brainer unworthy of the justices’ time; and experts, analysts, and former Supreme Court clerks all helped form a consensus within the legal community: it was simply hard to imagine a court majority striking down the law.

The sentence that keeps rattling around in my brain was written by law professor Rick Hasen: “The smart money before the argument was on an 8-1 upholding of Obamacare.” A week ago, this was an entirely sensible, mainstream, and widely-accepted observation. Today, it seems outlandish.

The question, then, isn’t why did “the left get it so wrong,” but rather, why the entire legal community seems so amazed by the apparent trajectory of last week’s arguments. It seems to me the predictions going into last week were fine; it was the expectations that were off.

The predictions were based on reliable guide posts: precedent, the facts of the case, the court’s traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices’ avoidance of activism. This is routine whenever the Supreme Court hears a high-profile case – court watchers consider what these justices have said and done before, and they shape predictions accordingly.

And that’s exactly what happened in advance of oral arguments in this case. When analysts expected a 7-2 or 8-1 ruling in support of the administration, they weren’t just picking numbers out of thin air; this was a reasonable estimate based on everything we know about the court, the law, and these justices.

So why do the predictions look ridiculous? Because the legal community – analysts, scholars, journalists, attorneys, former clerks – appear to have wildly overestimated the extent to which conservative justices give a damn about precedent, the facts of the case, the court’s traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices’ avoidance of activism.

Before last week, objective court watchers could be overheard making comments like, “Sure, there are five conservative justices on the court, but it’s not like these are five House Republican freshmen from Alabama. These are serious jurists and honorable men who are acutely aware of their unique responsibilities. It’s not like they’ve gone mad.”

After last week, these same objective court watchers can be overheard saying things like, “Maybe they’ve gone mad.”

This reminds me a great deal of the months preceding the debt-ceiling fight. Many political observers, including most of the West Wing, assumed congressional Republicans were conservative, but not dangerous. They wouldn’t really attack the full faith and credit of the United States, on purpose, holding the nation hostage as part of some odd ideological crusade.

But the expectations were wrong, and GOP officials were reckless and irresponsible to a nightmarish degree.

The same is true with regards to health care at the Supreme Court. The working assumption was that the officials on the right are very conservative, but still inclined to do the right thing. The oral arguments, like the debt-ceiling fiasco, has forced a reevaluation of these assumptions.

This is a case in which the court majority stands poised to strip the Supreme Court of its legitimacy and credibility (again). Some on the right see this as a development worth bragging about, mocking those who perceived conservative justices as principled professionals.

I respectfully disagree.

Affordable Care Act, Obamacare and Supreme Court

Predictions vs. expectations at the Supreme Court

Updated