Post-mortem America: Proximate cause of death

Sunday, April 1, 2012
By Paul Martin

Doug Hagmann
Saturday, March 31, 2012

Tune to any television or talk radio program, or visit any website driven by political agendas and you will find self-styled experts and pundits making predictions about the Supreme Court ruling regarding the health care bill. Their predictions are primarily based on the questions posed by the justices. While the legal disposition of this issue is arguably the most important in the history of our republic and the attention is well deserved, real world experience and three dimensional thinking appears to be mostly absent from the analysis.

Those who are basing their predictions on the questions posed by the judges obviously lack real-world experience. Having occupied seats in numerous courtrooms in many venues, I would never attempt to predict rulings based on questions posed by judges or juries. While juries are unpredictable, judges often ask questions to trigger discussion or open debate. I’ve seen judges who appeared to take an adversarial approach to a certain aspect or element of a case and later rule in favor of that which they appeared to have a certain bias against. I suspect that the vast majority of seasoned lawyers would agree.

Yet, an article written by David Savage appeared in The Los Angeles Times yesterday titled “Justices poised to strike down entire healthcare law.” The author’s premise was based on the questions raised in open court by Judges Scalia and Kennedy, suggesting that they have all but formalized their ruling against the constitutionality of the matter.

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