U.S. Supreme Court

Some Pundits and Oral Argument Reports Misjudged the Supreme Court on Health Law


After oral arguments on the health care law’s insurance mandate, news reports focused on tough questioning faced by Solicitor General Donald Verrilli Jr.

The Los Angeles Times said the questioning “may signal trouble” for the government, while the New York Times said it wasn’t clear that the administration had captured a fifth vote needed to win the case. Soon after the arguments, the online trading exchange Intrade was setting the odds at 61 percent that the court would strike down the mandate, while the odds of a smackdown were about 52 percent at FantasySCOTUS.

So much for the predictive value of oral arguments, the Wall Street Journal Law Blog notes. “Arguments Schmarguments,” its headline proclaims.

The pundits also varied in their predictions. SCOTUSblog founder Tom Goldstein was among those who were right about the insurance mandate. The Washington Post’s In the Loop column says others who got it mostly right were Harvard law professor Laurence Tribe (who thought the court would “probably” uphold the law), former New York Times legal journalist Linda Greenhouse (who thought the court would uphold the mandate by a wide margin), Washington Post report Robert Barnes (who thought the chief justice could vote with the liberals), and former acting Solicitor General Walter Dellinger (who thought Roberts would write the opinion upholding the law in a lopsided vote).

CNN analyst Jeffrey Toobin got it wrong, though, when he saw the oral arguments as “a train wreck for the administration.” ThinkProgress lists four others who were mistaken.

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