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  • Obamacare Oral Argument: What the High Court's Order Suggests

    When the Supreme Court agreed this month to hear the Obamacare constitutional challenge, it didn’t surprise most Court watchers, but the amount of time it set aside for oral argument is highly unusual. That is surprising for a few reasons, most of which should be unsettling to the current administration that is defending the law. The Supreme Court’s Nov. 14 orders were a bit ambiguous on one point, but it seems to have scheduled 5 ½ hours of oral argument on issues related to the one case brought by 26 states and the NFIB. That is 5.5 times the amount allotted for the vast majority of cases the Court hears.

    In recent decades, the Court generally sets a maximum of 60 minutes for oral argument in each case (usually divided 30 minutes per side), even for complex and high-profile matters that may involve two or more consolidated cases or three or more legal issues to resolve.  Each year, the Court might expand oral argument in one or two cases to 90 minutes. The Court allowed 90 minutes of argument for the two appeals in the presidential recount struggle that led to Bush v. Gore (2000). More recent examples include Citizens United v. FEC (2010) (the campaign finance case President Obama tried to politicize), District of Columbia v. Heller (2008) (the DC gun case), and Boumediene v. Bush (2008) (involving detainees in Guantanamo) to name a few, were all under 90 minutes. But the argument regarding the McCain-Feingold campaign finance law in McConnell v. FEC (2003) was the only one that was over two hours in the last decade.

    In the Court’s earliest days, written briefs were not even required and oral arguments could last for days on end. Oral argument in the landmark cases McCullough v. Maryland (1819) and Gibbons v. Ogden (1824) lasted nine and five days respectively.[1] In fact, it was not until 1849 that the Court set a limit for oral argument, allocating two hours per side and requiring the parties to file briefs setting forth their arguments before the oral argument.[2] Over the years, the Court reduced oral argument from two hours per side, to 90 minutes per side, and then to 60 minutes per side.  In the 1970s, the Court reduced the time to the current 30 minutes per side.[3] The Court sometimes allows or requires one side to split its 30 minutes (e.g., granting the U.S. Solicitor General 10 minutes of one side’s time), but it rarely grants additional time than the hour allotted, and when it does so, it is usually 10, 20, or 30 extra minutes total.

    Since World War II, very few cases have been allowed more than four hours, as the Court will allow in the Obamacare argument. In the last sixty years, the biggest outlier is Brown v. Board of Education, which was first argued over three days in 1952 and again over another three days in 1953, but it also involved four consolidated cases. Since Brown, the only cases that are close to the amount of oral argument granted in the Obamacare challenges are Miranda v. Arizona (1966) (which also was four consolidated cases), clocking in at 5 ½ hours, New York Times Co. v. Sullivan (1963), at just under 4 hours, and McConnell v. FEC at about 4 ½ hours.

    Besides the extraordinary number of hours the Court has set aside for the Obamacare argument, of particular note is the 90 minutes alone (50% more than a standard case) for the issue of “severability.”  The issue of severability involves whether the Court must strike down the entire law if it finds any portion of it unconstitutional. That issue is usually included in the standard 60 minutes of any other case. One has to wonder why the Court thinks it is worthy to set aside 90 minutes for nothing other than a legal debate that only comes into play if it rules one portion of the law unconstitutional (most likely, the individual mandate). The obvious answer is that a number of the justices must think the constitutional challenge is strong enough that it is likely to need to decide the issue of severability—and it wants 90 minutes of uninterrupted questioning on that issue.


    [1] Mark R. Kravitz, Words to the Wise, 5 J. App. Prac. & Process 543 (2003).

    [2] Sup. Ct. R. 53, 48 U.S. (7 How.) 580 (1849).

    [3] Sup. Ct. R. 44, 397 U.S. 2311 (1970).

    Posted in Featured, Obamacare [slideshow_deploy]

    9 Responses to Obamacare Oral Argument: What the High Court's Order Suggests

    1. Bobbie says:

      There's no constitutional challenge when you consider the results will increase power of government over the freedom of personal livelihoods. People in America are suppose to live free from government with proper American governing (outside ones own) to make that happen (within ones own!) maybe they're just needing details to help better understand the appropriate interpretation of the American peoples' constitution that's been so wrongfully abused and misinterpreted by tax paid government run individuals over the years. Indoctrinating social government dependency instead of individual freedom to use human intelligence to be equally expected to live up to personal responsibilities and self reliance, immigrant and American born, equally. the American People's Constitution empowers the people, all people (if you're American you're included) as individuals. it does NOT EMPOWER the American GOVERNMENT!
      it's unconstitutional! we need real quality doctors who work for the patient, not the government!

      i can see it would take a while if this were the case??????

    2. Valhutchison says:

      what is Wolff Blitzer trying to get Newt on before Newt can do a gottcha on him?

    3. LibertyAtStake says:

      Looks like they want to take their time ruling on the bill that had to be passed for us to find out what was in it. That's a conservative virtue. Which makes it a good start.

      d(^_^)b http://libertyatstake.blogspot.com/
      "Because the Only Good Progressive is a Failed Progressive"

    4. Isabel says:

      Less time to argue equals less time to get the truth across, which in this case is good for the Obama Administration.

    5. Rhyscurrency says:

      Since they hate work so much, please relieve them from misery…throw them overboard

    6. Bobbie says:

      was my previous comment too confusing?

    7. How many M.D.s graduated in the last decade?…will in the next decade?
      How many J.D.s graduated in the last decade?…will in the next decade?
      I am serious; does any one at Heritage know? I'm sure some one does.HELP?
      Our Free Enterprise system, our Marvelous Medical Care and Pharmaceutical Industry will be ONLY THE FIRST TO GO. 2200 pages, 245 new regulators! This is "the Big One" as in taking away our freedom of choice!…and I believe, only the beginning.
      Repeal may not happen and months more of media bias and a $billion campaign scares me like nothing I remember. We the People Rally.com, a plan to be heard by our Supreme Court.

    8. One2Stupid says:

      What this case will really prove is this. Does the U.S. Supreme Court enforce the Constitution or a political agenda?

    9. chris k says:

      simply sheep being led to the slaughter slowly but surely … if we alow it were going down for sure.I have never in my life seen so much wool being pulled over so many sheeps eyes .wake up people !!!!

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