The nation listened with unusual attention as the U.S. Supreme Court heard an unprecedented three days of oral arguments on a variety of challenges to the Patient Protection and Affordable Care Act of 2010. From the start, advocates for the law and its individual health insurance mandate faced stiff questioning from the bench, especially from four of the five justices of the court’s conservative wing.
Many commentators jumped in with prognostications based on who asked what of whom, prompting early headlines that the Affordable Care Act was “toast.” There are many flavors of conventional wisdom at play here, though, including the old saw that one cannot tell from the Justices’ questions which way they will vote.
A number of Affordable Care Act supporters clung to this view in the aftermath of some very heavy questioning of U.S. Solicitor General Donald B. Verrilli, Jr. On the other hand, before he joined the Court, Chief Justice John Roberts looked at a sample of 28 cases, and found that the party receiving the most questions from the bench lost the case 86% of the time. In another review, NY Times Court correspondent Linda Greenhouse evaluated the emotional tenor of the oral arguments, and found that her predictions outperformed competing quantitative models.
More recently, Ryan C. Black (Michigan State University), Sarah A. Treul (University of North Carolina, Chapel Hill), Timothy R. Johnson (University of Minnesota) and Jerry Goldman (Chicago-Kent College of Law) extended and combined Roberts’ and Greenhouse’s approaches, and categorized all of the Court’s oral arguments from 1979 through 2008, scoring each exchange as friendly or hostile, and correlating them with the final vote and (for 2004 through 2008) with individual justice votes.1 The results aren’t absolute—Black, et al., found that their scoring model could predict the overall court vote about 69% of the time (about 15% better than other methods), and predicted individual Justices’ votes about 73% of the time (almost 25% more often than the next-best method).
We asked Ryan Black what his model predicts for healthcare reform.
“As you can imagine,” he replied, “this case is pretty extraordinary both in terms of the sheer amount of oral argument and the fact that there are a few ‘mini-cases’ embedded within it. That being said, we have analyzed the data from the individual mandate argument session and run it through our model. Unfortunately, we get pretty ambiguous results. Our best guess would be a 5-4 vote to uphold the individual mandate,” with Kennedy, Ginsburg, Sotomayor, Kagan, and Breyer in the majority and Roberts, Scalia, Alito, and Thomas in the dissent.
“But,” Black notes, “several of the pivotal votes—e.g., Kennedy and Roberts—are within the margin of error,” and could just as easily go the other way—meaning anything from a 6-3 vote to uphold to a 5-4 vote to strike it down.
In the end, after all of the polling, number-crunching, and spin, it comes down to the old way: we wait.
OTHER SUPREME BUSINESS
But the Affordable Healthcare Act is far from the only pharma-related matter before the court. At least two other important suits are working their ways through the system:
Gene Patents Back in Play. Before getting down to hearing healthcare arguments on March 26, the Supreme Court vacated an appeals court decision that upheld Myriad Genetics patents on the BRCA1 and BRCA2 “breast cancer genes.” The court returned the case to a lower court for reconsideration in the light of the Court’s March 20 decision (Mayo Collaborative Services vs. Prometheus Laboratories), holding that a diagnostic patent “effectively claim[ed] the underlying laws of nature” and so was not valid.
Overtime Pay for Sales Reps? On April 16, the Court is scheduled to hear oral arguments in Christopher v. SmithKline Beecham (11-204), in which former pharmaceutical sales representatives claim that they are entitled to overtime pay. At the end of February, the U.S. Solicitor General filed a friend-of- the-court brief supporting the detail reps, arguing that pharmaceutical sales representatives are not “outside salesmen,” and are thus not exempt from overtime compensation that would otherwise be required by the Fair Labor Standards Act of 1938.
1. R. C. Black, S. A. Treul, T. R. Johnson, J. Goldman (2011). Emotions, Oral Arguments, and Supreme Court Decision Making. The Journal of Politics 73(2): 572–581.