Supreme Court Watchers Taken to School

There is much to be learned from today’s U.S. Supreme Court ruling in the so-called “Obamacare” case, and one of the more important lessons has to be that most predictions of what the Court might do are pretty much worthless on cases like these, where the Court is deciding multifaceted legal matters involving unprecedented legal issues.  The fact that the Court upheld the law based on a tax analysis rather than a Commerce Clause analysis seemed to surprise everyone, and nobody predicted that Chief Justice John Roberts would end up with the Court’s liberal wing without taking along Justice Anthony Kennedy, who is normally thought of as the swing vote. 
No matter how much we say this here, most of the public still won’t believe it: Judges are not as predictable as they are commonly portrayed in the media, particularly when they’re dealing with novel questions that do not have clear precedents. Certain judges may think like other judges, or take similar approaches, but it has not been uncommon for Justices to rule in unforeseen ways throughout the history of the Court.  And that shouldn’t surprise anyone. In fact, it’s why so many Supreme Court opinions are so long and cite so many cases. Anyone who thinks judging is easy should read not only the opinions, but the Appellants’ briefs, the Appellees’ briefs and the Amicus briefs as well, which illustrate the countless opportunities for opinions and approaches to diverge.  
The New York Times ran an excellent piece earlier this week correctly predicting that the prevailing wisdom was likely to be wrong. Approximately ¾ of the bettors at an online betting market thought that the individual mandate would be struck down, largely because of what transpired during oral arguments.  Many people might be surprised to find that, in the words of the Times:

“ .  .  .  studies have found that predictions made by “expert” commentators on the Supreme Court do barely any better than a coin flip and are beaten by the statistical methods (a finding that follows the poor overall track record of experts in making predictions under many other circumstances). These experts are irrationally confident about their ability to read the tea leaves, and their predictions suffer for it.”

And that’s the way it should be. Certain politicians and members of the media may not like it, but the day that judges become too predictable is the day we no longer have a functional and independent judiciary

Posted: 6/28/2012 2:12:56 PM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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