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SD Law School Predicts Outcome Of SCOTUS Hearing On Health Care Law

March 27, 2012 1:08 p.m.

Glenn Smith, Professor of Constitutional Law, California Western School of Law

Related Story: Insurance Mandate A Tough Sell At Supreme Court


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

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CAVANAUGH: I'm Maureen Cavanaugh. This is the second day of oral arguments before the U.S. Supreme Court in a challenge to the affordable healthcare act, and today, are the main issue of the challenge has been argued. That is whether the federal government can mandate Americans to buy health insurance. A multi day argument before the Supreme Court is a rarity, and it's one that law schools around the country are taking advantage of as the ultimate teachable moment over at San Diego's California western school of law, students have already held a mock court of the proceedings. Here to talk about it is my guest, Glenn Smith, professor of constitutional law at the California western school of law. Welcome back to the program.

SMITH: Thank you very much.

CAVANAUGH: You've gotten a chance now to see the initial transcripts of the real Supreme Court arguments.

SMITH: Indeed.

CAVANAUGH: How close did your students come to the real thing?

SMITH: Refreshingly close, happily close for any professor that spends time, likes to see his students responding. I think that my students were very interested in trying to figure out whichever way they ruled to support the individual mandate or against it. How could they limit the damage? Or how could they rule narrowly about it? And that seemed to be the theme of all the justices in the real argument, they were looking for so-called narrowing principles or ways to draw lines so that -- on the federal government from regulating everything and everyone's life, and or on the other hand it would not be a strong impediment to the federal government dealing with serious issues it needs to deal with.

CAVANAUGH: How does this mock court teach your law students?

SMITH: Well, I started the simulation course several years ago because I had the sense that just reading the black and white words and the opinions didn't give students the sense of the dynamics that went on, especially with a 9-member Supreme Court where you can have the best idea in the world but unless you've got four other colleagues to go along with you and create a majority, it doesn't matter. And so I thought that really the best way was to barrow from a number of my other colleagues who do a lot of simulations. Why can't we simulate the Supreme Court? So I got the idea that the students should step into the shoes of a vehicle real justice, become familiar with his or her past decisions and speeches and statements, and sort of to the extent one human being can do it, step into the mentality of that idea and that student and come into a mock oral argument where the students pretend to be arguing before the Court, put them in a room I couple days later like the real justices have to do, and decide how they're going to rule and not only who's going to win, but what theories can they use? Can they coalesce around a rationale majority? And the students have told me they finally understand what it's like to be a justice, having to be affected by different influences on different ideology, and different legal press Kents and political and legal philosophies, and how to reconcile those for themselves, and then how to achieve consensus.

CAVANAUGH: We have a clip from a report prepared by KPBS reporter Kenny Goldberg. Here is one of your students in conference with the other justices.

SMITH: That's right.

NEW SPEAKER: The only way I can see siding with the petitioner is if we either carve out an exception for healthcare or if we create a new blight line test that would make it impossible for Congress to compel citizens to buy private commodity. At this time I would side with the respondent, but if you guys like the idea of a test, I would like to hear some of your opinions on that.

CAVANAUGH: I love your guys' opinions. I wonder if they actually talk like that.

SMITH: I suspect they're -- they work together for years, I suspect there's a fair amount of informality, but I don't know if that particular locution is used. Lives

SMITH: They ultimately decided 6-3 in the federal government, that they could find that limiting principle that my chief justice there was alluding to. We'll see. Obviously that was what justice Roberts and Kennedy were dealing with today, that limiting principle. And I think that's really what this case is going to turn on. At least this issue, for sure.

CAVANAUGH: Monday's argument at the real Supreme Court was --

SMITH: We like to call them the east coast Supreme Court.

CAVANAUGH: Just to make the distinction. It was a legally technical argument, but the issue is about the mandate. Apparently the questions asked by some of the justices did not make it look good for the affordable healthcare act. Why would somebody watching the Court have that takeaway from today's proceedings?

SMITH: Well, you have to keep in mind that oral argument is sometimes used by different yesterdays to ask devil's advocate questions. So it's not a complete indicator. But it is useful. And I think that if you're going to make the claim that the argument should make the government more pessimistic than it might have been going into it, you would have to say because justice Kennedy appeared to accept the idea that this -- the healthcare mandate was a fundamental change in the way individuals related to the government.

CAVANAUGH: And tell us why everybody's watching justice Kennedy so closely on this.

SMITH: Well, justice Kennedy is the one justice in the -- there's been three states' rights -- federal commerce power cases: And Kennedy split in those 2†cases. Scalia did too. But Kennedy is in general, a swing voter who goes -- can be influenced one way or the another by a good argument. And he specifically was in the commerce area. People are also looking at justice Roberts because he didn't participate in any of those decisions, and he's kind of an open book. If I'm on the other side of the government, looking for bright spots, I would like the extent to which chief justice Roberts asked questions to make sure that the opponents of the government position address the central government position. It's very clear that justice Roberts wanted to get both the government's arguments, and the opponents' arguments that healthcare was a unique market and could be distinguished. He clearly understands that's why the pivot point of this argument turns, and he seemed to be consistently turning to it. And at least entertaining the idea that the government did have an argument there. So he may appear a little more gettable than he might have before the argument.

CAVANAUGH: There are actually several different reasons why justices ask questions during these proceedings.

SMITH: Yes. Exactly.

CAVANAUGH: Tell us about that.

SMITH: People think they're there to ask questions to get answers to their problems with that particular side. Of and that's true. But as much, if not more, and I think this argument today bore it out, they're talking to each other. They're trying to influence each other, feel out where each other is, they don't meet or confer before this. The argument's really the only time where the nine justices are together, inquiring together. So often the justices will be sending messages or counter arguments, if one justice on this side, that justice doesn't agree with seems to be scoring a point, the other justice will come in only as a junior council and help out council make an argument. It's very difficult to be a Supreme Court advocate, but I suspect it's often frustrating too because you're sort of a glorified postal clerk managing messages back and forth between the justices rather than getting a chance to elaborate on your own position.

CAVANAUGH: So how much weight does oral argument actually have at the U.S. Supreme Court?

SMITH: If you talk to the justices, they say it's significant. Obviously a good rhetorical argument cannot make up for a weak position or vice versa. But it does matter. I think the ability of a skillful advocate as all these advocates have been to both kind of synthesize the dizzying array of arguments and issues and case precedents and foot notes and all that, to pull it together into a thematic position that leaves the justices clear about what's the essential takeaway that they should get from your position is really effective, and often in an argument like this one, where a lot of what ifs are being asked, if we accept this position, will you be back in two years arguing for this position? And can it extend? That's a useful, organic use of oral argument, and a skillful advocate who can satisfy the justices that they're not embarking on some radical new direction can make a big difference.

CAVANAUGH: I want to remind everyone that I'm speaking with Glenn Smith, professor of constitutional law at the California western school of law. Given that at its heart, this is a political policy issue, is it surprising to constitutional law experts like yourself that this case is before the Supreme Court in the first place?

SMITH: It is surprising. If you look back at the politics of the individual mandate, of course, it's not that long ago that it was a Republican idea supported by a Republican governor in Massachusetts. And sort of the idea that we would be in litigation where four circuit courts and lots of lower federal courts would have been called upon to manage all these lawsuits and deal with all this is surprising to me. It's not surprising that given the lower federal court interest in this, and the split in the circuits that the Supreme Court weighed into it. But 5.5 hours of oral argument on all these different issues is a greater degree of prominence than I expected.

CAVANAUGH: Is as you see it, are the constitutional issue here clear cut or is it a little bit strained?

SMITH: It's definitely murky. You can state it very starkly. The opponents of the individual mandate say it's a radical unprecedented attempt to force people to buy a product or to enter a market. The government says no, everyone is already in the market for healthcare, this just regulates the timing, and how they do it and prevents some people from forcing others to subsidize their costs. You can say it at that level, but right underneath it, you immediately go to questions about judicial philosophy, what's the proper role, division between the Court stepping in and actively second guessing Congress, what do these 3 cases I refer to mean, how do you cut the precedents and square them with various positions, and then there's all these what ifs. We've heard what ifs about broccoli and funeral insurance, and all kinds of things. So it does get to be -- yes, it's a simple political matter, and ultimately if will probably be perceived, unfortunately, by the American people as either a verdict for or against President Obama. But it's really much more complicated and much more nuanced than that.

CAVANAUGH: Now, talk about nuanced legal arguments, as we've been saying the main issue of the affordable healthcare act was argued before the Court, and that is the one that mandates Americans to buy health insurance. Now, tomorrow there's another dense legal question that's being argued. It's about severability. And I wonder, can you give us a brief, clear description of what this issue is about?

SMITH: I'll do my best. Basically, the question is if part of the statute is invalid, can you sever it, can you take the bad part out and leave the bad part? Or does -- is the bad part the part that was unconstitutional so important and integral to some or all of the rest of the statute that in fairness to Congress' intent, we should just get rid of some or all of the statute? It's like -- if you think about excising a cancer from a body, do we need to take other tissue around it and relate it to it or can we -- did we get that -- that cancerous growth, and can you leave the rest? It's a bit analogous to that. But it's a very complicated question about the intent of Congress and the -- how the statutes interact with each other, and it's very complicated.

CAVANAUGH: And once again, the government is saying well, even if one part of this is unconstitutional, we can -- the rest of the healthcare law can stay in tact; is that right?

SMITH: Well, almost am that's normally what the government would argue. Of that's one of the thousands of things that makes this case interesting to me, which is the government is not arguing that all of the rest of the statute stays behind. In fact, the Supreme Court had to ask -- has asked an amicus, a friend of the Court to argue that position. So the 11th circuit said that, but nobody is defending the Court below. The government says most of the statute remains. But the government admits that two very important provisions relating to preexisting conditions fall. So the government is upping the stakes for the Court, if it strikes down the mandate, we're also going to lose the preexisting condition provisions am

CAVANAUGH: Which we heard on this show yesterday are very, very popular as well.

SMITH: I had a student in another class, making presentations, and a student said to me -- told me a story that she had to spend $3,600 a month on medicine because she had a preexisting condition, and her peace corps health insurance ran out. So we tend to deal with these at a slogan level, or theory level, but there's real people affected by these.

CAVANAUGH: Getting back to the Supreme Court, after these arguments are over, what actually happens? Do the justices retire immediately to start thinking about this?

SMITH: Not immediately, but faster than I thought when I first started looking at this. Two days later, really, they're in their conference with only them. And they're going to make a preliminary decision. And then the different justices will be assigned to or will choose to write a decanting and majority opinion, and they'll circulate those for weeks, and it's always possible that the votes could change or the theories could change. It's not final till it's final, till they announce it, which probably won't happen until the end of the term in late June. It's a little agonizing to me, they'll know how they decided it in two days. After the last argument, but those of us who are really interested in knowing won't know for months.

CAVANAUGH: Now, I know that your students have made their ruling.

SMITH: They have.

CAVANAUGH: What's your prediction?

SMITH: Well, I hate to contradict my students. This one is especially hard. When I'm pressed, I say that I think it's slightly more likely than not that a majority will strike down the individual mandate. And then I think what they'll do is they'll then accept the government's position that the mandate falls, and so does preexisting conditions, but the rest of the healthcare bill can stand. And we'll leave it to politicians to decide what to do next.

CAVANAUGH: Let me let everyone know that an NPR special on today's healthcare arguments before the U.S. Supreme Court will air tonight at 7:00 here on KPBS. Thank you very much.

>> Oh, you're very welcome.