“If you are a frequent attendee at the court, and you study the issues, and you know the justices’ jurisprudence, you can know an awful lot from what happens at oral argument,” said Todd Gaziano, director of the Heritage Foundation’s Center for Legal and Judicial Studies.
Like many observers of the three-day oral arguments, Gaziano came away convinced the court is leaning toward striking down some or all of the law. The overwhelming consensus left White House officials insisting afterward that the arguments defy interpretation.
“Anybody who believes that you can try to predict the outcome of a Supreme Court case based solely on the questions of the justices is not a very good student of the Supreme Court,” White House spokesman Josh Earnest insisted this week.
A University of North Carolina political scientist and her colleagues, for instance, examined 8 million words spoken by justices over 30 years to conclude last year that “when the justices focus more unpleasant language toward one attorney, the side he represents is more likely to lose.”
Experienced advocates and close court observers, too, can likewise piece together reasonable predictions from a combination of questions asked, tone, prior rulings and the courtroom equivalent of body language.
“You can’t know anything for certain from the oral arguments,” Wisconsin Attorney General J.B. Van Hollen said in an interview, “but they can give you a feeling. They’re a predictor, but a cautious predictor.”
Sarah A. Treul, a University of North Carolina political scientist, joined three other scholars in studying the transcripts of nearly 3,000 Supreme Court cases argued between 1979 and 2008. In a study published last year, the researchers concluded that words matter.
“While justices gather information and seek answers that will help them decide close to their preferred outcome, they do so in a way that provides emotional clues as to how they may act when they ?nally vote on the merits,” the researchers wrote in The Journal of Politics.
“We can predict just over 70 percent of votes and cases” based on oral argument questions, said Timothy Johnson, one of the researchers on the paper and a University of Minnesota political scientist. [JB: Really?]
Chief Justice John Roberts Jr., too, has identified at least some connection between oral argument questions and final results.
In a 2005 study, Roberts examined 28 cases heard by the Supreme Court. He subsequently reported in the Journal of Supreme Court History that 86 percent of the time, the side receiving more questions from justices ultimately lost the case.