Yesterday, Dave Hoffman at Concurring Opinions characterized my cobloggers and me as “engaging in victory lap devoted to the proposition ‘We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are particularly close-minded.'” I do not thing that “victory lap” is a fair characterization for the speculations offered by Jonathan, Ilya, and Dave. And it certainly does not describe how I feel about arguments last week. I thank Dave for backing off this claim in response to a comment I offered on Concurring Opinions, but it is still useful to clarify matters here.
I feel very good about how argument went, but I don’t know what the outcome is going to be any more than anyone else outside the Court itself. So any victory lap is unwarranted. Nor have I blogged about the oral arguments, though of course I did comment to the press and told them pretty much the same thing: I feel good about how things went, but am not making any prediction on the outcome. True, I always thought we had a far better chance than most other law professors. Oral argument confirms that much, I think. And, although I believe we have a decent chance to prevail, oral argument does not guarantee that.
For the past two years, I have been asked literally hundreds of times to predict the outcome of the lawsuit and I have consistently declined. I agree with much of Orin’s post below. As Orin rightly notes, when the lawsuit commenced, I believed that this challenge was a long-shot, though I admit to thinking our chances improved as some lower courts began upholding the challenge, and especially after the Supreme Court granted a historic 6 hours of oral argument. (The interesting question being addressed by my co-bloggers is why some never changed their assessment of the probabilities in the face of these developments. I think there is something much more fundamental — and more principled — than political bias that accounts for academic reaction both to the challenge and to oral argument last week that I will try to elaborate in the future.)
For most of the past two years, my prepared speeches concluded with a statement that the smart money is always on the Supreme Court upholding an act of Congress — especially a popular one — though I also identified “legal realist” considerations that favored us (e.g., that the ACA was very unpopular). As I made legal arguments here and elsewhere, I never claimed to know what the Court would do. Indeed, I denied that legal arguments should be predictive. Even today with far more data on which to base a prediction, I don’t pretend to know what the Court will do (or has already done), though like Orin and most everyone else I think the odds of our challenge prevailing are higher now than I would have said before the argument.
Before the argument, I told my wife that if I walked out of the Court knowing the outcome it would mean we had lost; if we had “won,” I would not know it. I still feel that way. The jury will be out for quite a while. I remain hopeful.