Several commentators have provided their thoughts on why the Supreme Court granted 5.5 hours of oral argument in the the ACA cases. Over at Just Enrichment, Joshua Matz hypothesizes that the decision was made for show, or to simply signal to the public that the Supreme Court was giving this case the utmost respect. At Dorf on Law, Michael Dorf makes the remarkable argument that some members of the Court are trying to signal to Justice Kennedy that this is an especially important case. At Volokh Conspiracy, Orin Kerr argues that extended time is a good sign for the challengers.

As a threshold matter, I think Professor Dorf’s theory is tremendously unlikely. The Court simply did not provide extended oral argument time in order to signal to one or more justices that this is a significant case. Each of the Justices is clearly well-aware of the scope of this case and, in any event, I am not sure that reinforcing the gravity of the situation generally is a way to woo any of the votes. The Supreme Court routinely hears major cases and, although this one is bigger than most, the idea of a landmark case heading to the Supreme Court is likely less novel for the Justices than it is for court watchers.

I think the truth is that the ACA cases simply present remarkably difficult legal questions and the Court has a short timeline for making a decision. Argument will likely be held across two days in March, and even assuming the case is heard on the first day possible and decided on the last day possible–March 19 and June 25, respectively–the Court will still have only 98 days to write this opinion during the busiest time of the term. As much as this case genuinely deserves a well-thought out, deliberate opinion, the Court will simply have to get this opinion right on the first try.

Extended oral argument could be a way for the Justices to flesh out some of the issues that might otherwise have been discussed via memo or screened out in early drafts. The Court may simply be trying to avoid a repeat of McConnell v. FEC, where it heard four hours of argument and still produced eight separate opinions after 93 days. Chief Justice Rehnquist was almost certainly less interested in building unanimity than his successor, however, and that may explain why the opinion was rushed out the door in such a fractured state. The Court will have a few more days this time, but the Justices will hope to produce more unified opinions.

Recently, in Citizens United v. FEC, the Court was forced to hold reargument on a new question of law and still took 134 days to produce a reasonably unified opinion. The Court released a majority opinion that was joined by only one member in full and four concurring opinions. The ACA cases have more moving parts, the Court will have fewer days to decide the cases, those days will be busier (March-June for the ACA cases and September-January for Citizens United), and political forces make a move for rehearing unlikely.

Moreover, the Justices realize that these issues are difficult and the presence of multiple petitions gave them an easy opportunity to grant extended oral argument time. Additionally, I’m not surprised that the cases were granted in tandem but not consolidated. Recently, the Court has been taking advantage of its discretion to hear cases that are similar but not identical separately. The presence of so many discrete brought up on so many different petitions made a division of issues an irresistable proposition for the Court. The Court may also wish to avoid a repeat of Citizens United, where the issues were not briefed in their entirety and rearmament was required to fully flesh out the case.

Whether extended oral argument signals the likely outcome of the case is harder to say. Proponents of the theory likely believe that extended oral argument implies that the Court will do more of its own thinking on the case and is less likely to simply follow the prevailing or “obvious” outcome of this case. Unfortunately, recent studies have suggested that the Supreme Court generally doesn’t typically heed the majority approach of circuits. I also instinctively tend to believe that the Court would do most of its own thinking on this matter and rely only peripherally on the views of lower courts. That might not be the case for other issues like specific sentencing matters or issues of statutory minutiae.

I generally think we cannot read into the outcome of the case from the decision to grant extra time, but the most compelling argument to support the notion that extend oral argument weights in favor of ACA challengers is that Justices may simply be more likely to extend argument if they are anticipate striking down the law. On an intuitive level, it seems more likely that a Justice would vote to extend time out of concern for incorrectly striking down a law than out of concern for incorrectly upholding a law. My methodology is hardly scientific, but I think the Court would be more likely to extend argument if it is leaning towards striking down a law than if it is leaning towards upholding it.

In the end, I think the extended oral argument was granted for two simple reasons: the Court knew this case would be a difficult one, and the Court knew that it would not have a lot of time to write the opinions. Joshua put it best:

If 5.5 hours of argument helps to avoid a blizzard of seriatim opinions, then lower court judges, casebook writers, and future generations of law students will be forever grateful that the Court took the extra time to sort out its views.

Amen.


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