Top court on health law: Schumer's take v. Roberts’ rule

One of the biggest guessing games in Washington is whether the Supreme Court under Chief Justice John Roberts will reject Obamacare’s core issue – the mandate to obtain health insurance – when it announces its ruling in June.

It’s an issue that you could say once again pits Sen. Charles Schumer (D-N.Y.) against Roberts – or more accurately Schumer’s experience against Roberts’ ‘rule.’

After the four speaking conservative justices last Tuesday harshly questioned the mandate’s defender, U.S. Solicitor General Donald Verrilli, some top veteran reporters and CNN’s Jeffrey Toobin declared the law all but dead.

The Obama administration has pushed back, and so did Sen. Charles Schumer (D-N.Y.) on NBC’s "Meet the Press" on Sunday.

“You know, I've been on the Judiciary Committee for 30 years in the House and the Senate,” Schumer said. “And one thing I've learned, you can't tell by the questioning as to how the Court is going to rule.”

But according to Stony Brook University political scientist Jeffrey Segal (who’s visiting at Princeton this year), Roberts offered a different view before he was elevated to the Supreme Court.

As a former top advocate before the high court and a judge on the U.S. Circuit Court for the District of Columbia, Roberts described a “rule” for predicting Supreme Court decisions in a lecture to the Supreme Court Historical Society’s annual meeting on June 7, 2004.

“Recent studies have begun to suggest that you can tell how a case is going to come out simply by seeing which side was asked the most questions: the side with the most questions is going to lose,” Roberts said, referring to an analysis by then third year Georgetown law student Sarah Levien.

“In the 28 cases I looked at, 14 from the 1980 term and 14 from 2003, the most- questions-asked ‘rule’ predicted the winner -- or, more accurately, the loser -- in 24 of those 28 cases, an 86 percent prediction rate,” Roberts said. “The secret to successful advocacy is simply to get the Court to ask your opponent more questions.”

How does Obamacare come out if that measure is applied to the two hours of argument over the mandate to have insurance?

At first blush, it looks like a split. By my count, the justices directed 74 questions to Obamacare’s defender Verrilli and 75 questions to the two attorneys for the 26 states and business group suing to overturn the law, Paul Clement and Michael Carvin.

But break it down by members of the conservative bloc and liberal bloc, and you get this: conservative justices asked Verrilli 57 questions and Clement and Carvin 13, while liberal justices asked Clement and Carvin 52 questions and Verrilli 17.

Break it down more, and it gets more interesting.

Justice Antonin Scalia asked Verrilli 25 questions and Clement and Carvin 2. Justice Samuel Alito asked Verrilli 10 questions and Clement and Carvin 2. Roberts asked Verrilli 16 questions and Clement and Carvin 6. And Kennedy asked Verrilli 6 questions and Clement and Carvin 3.

And of course, that is without the fifth conservative justice, Clarence Thomas, asking a single question as is his custom. He’s widely presumed ready to strike down the mandate.

On the liberal side, Justice Sonia Sotomayor asked Clement and Carvin 23 questions and Verrilli 6. Justice Stephen Breyer asked Clement and Carvin 14 questions and Verrilli 3. Justice Elena Kagan asked Clement and Carvin 8 questions and Verrilli 3. And Justice Ruth Bader Ginsburg asked Clement and Carvin 7 and Verrilli 5.

Under the Roberts’ formulation, the four conservatives asked many more questions of Verrilli than the other two lawyers, and that means the mandate could well be sunk by a 5-4 vote – or there’s at least an 86 percent chance it could.

A caveat, though. This is just a count of questions, and in a few cases it was hard to separate a justice’s statements from his or her questions. And a more exhaustive review would rank the questions for being hostile or supportive of a position.

As I sat in the courtroom, and later as I reviewed the transcripts, many justices sounded as if they were laying out their positions. All four liberals mostly used their questions to try to suggest answers or help Verrilli, or to push back on Clement and Carvin. Scalia and Alito asked mostly hostile questions of Verrilli, but hardly any to Clement and Carvin.

Roberts appeared to go out of his way to push Clement and Carvin to address Verrilli’s arguments, but was tough on Verrilli. And Kennedy seemed hostile to Verrilli but backed away some in a final question to Carvin.

And that’s where there’s wiggle room. Despite Roberts' 'rule,' Kennedy and Roberts very well could join the liberals to uphold the mandate – but they also could join the other three conservatives to shoot it down.

So in that sense, Schumer is right. We won’t know for sure until June.