Panic Street Lawyer: Superus vs. Supremus

Sunday, 01 April 2012 06:00 AM Written by  Jay Hornack
20120401wap_sbowltop_150This was the first paragraph in a Monday morning article I read online at POLITICO.com:

The Super Bowl for Supreme Court watchers kicks off this week as the justices hear three days of oral arguments in what could be the blockbuster case of a generation: whether President Barack Obama’s signature law overhauling the American health care system is constitutional.

Oh Internet, will you never cease to provide me with column material?

My initial reaction to the author equating any Super Bowl to this particular Supreme Court oral argument was one of incredulity. Sure, both events are fond of using Roman numerals (the Super Bowl count is up to XLVI, and Tuesday’s argument concerned interpretation of a specific clause in Article I of the Constitution), and my research revealed the same Latin root for “super” and “supreme.” But, other than ancient connections, I thought the experiences of these current events had nothing in common.

Was I wrong? A brief review of sports experience categories is now in order:

The Fan Experience

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Super Bowl fans - Healthcare reform fans (mouseover)
From what I saw on television, demonstrators outside the Supreme Court on both side of the Affordable Care Act debate looked like fans of opposing teams playing in a Super Bowl, complete with costumes, signs and trash talking. However, the DC police did not allow any tailgating – an American football tradition -- this week.

Curiously, the police apparently chose not to enforce the DC no-scalping law. Although the marked-up oral argument admission ticket price did not reach Super Bowl heights, the percentage increase was greater, given that a ticket’s face value was zero.

But, unlike the Super Bowl, once the crowd got inside the Supreme Court -- nothing but silence (except for occasional laughter at acceptable points in the argument).

The Viewer/Listener Experience

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Courtroom drawings - Live camera action
For the 2012 Super Bowl, 166.8 million people tuned in for some portion of NBC’s coverage of the game, making it the biggest total TV audience of all time.

Meanwhile, the Supreme Court allowed for no television and no radio this week (it did release audio transcripts later in the day). For those persons in the courtroom, the Court allowed no cameras and no phones (in addition to no cheering and no booing).

There was also a ban on live texting and Twitter updates during oral argument -- which is what made the posting of regular live updates Tuesday morning on the Twitter account of the Alliance Defense Fund so curious. The ADF, a conservative group opposed to President Obama’s health care law, eventually stopped posting when directed to do so by an employee of the United States Marshal Service. The group blamed the ban violation on “some miscommunication with court officials.”

The Gambler Experience

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Las Vegas on Super Bowl - Intrade on Supreme Court
Gamblers legally wagered almost $100 million on Super Bowl XLVI on February 5 across Nevada’s 184 legal sports books. There may have also been some illegally Super Bowl betting going on elsewhere in the world …

There did not appear to be any wagering going on in Las Vegas over the Supreme Court’s consideration of the Commerce Clause and the individual mandate Tuesday. However, odds from Intrade -- a “prediction market” incorporated in and operated from Ireland -- for the Supreme Court to rule that the individual mandate is unconstitutional shot up from 38% to 60% that day.

The Halftime Entertainment Experience

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Points of view on parade - Pop music icon on stage
Hard to believe, sports fans, but some people watch the Super Bowl broadcast for the commercials and/or the halftime entertainment. Since there was no television coverage of this week’s Supreme Court oral argument, there was obviously no TV advertising. And the only “halftime” during oral arguments -- between Wednesday’s sessions on severability and Medicaid -- contained no Court-sanctioned entertainment.

 

However, the Supreme Court will announce in the next few weeks its decision in an entertainment experience case that will no doubt reference a certain past Super Bowl wardrobe malfunction.

The Analyst Experience

 

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NBC's Collinsworth & Michaels - CNN's Toobin
Prior to this week’s oral arguments there were a lot more legal “talking heads” on television and a lot more constitutional law experts quoted in newspapers than usual. That coverage in no way compared to early February’s six and one-half hours of pregame breakdown and daily newsprint used to preview the championship of professional American football. And every Super Bowl has plenty of postgame analysis.

Following this week’s Supreme Court oral arguments, the legal analysts directed rather critical comments towards the performance of one of the attorneys. The analysts were each given the opportunity to play the role of moot court judge at the major league level, and most chose to play it to the hilt. Some of them also tried to make outcome predictions based on the nature of the questioning from the justices. See Intrade, supra.

The Team Experience

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The Supreme Court - The New York Giants
For a party in a lawsuit, as with a team in a sporting event, what matters most is winning. A Super Bowl winner is determined by the final score at the end of the game.

The Supreme Court most likely decided the winning party in the legal challenge to 2010 overhaul of the American health care system in conference this past Friday. However, the decision (with written opinions) will not be publicly announced for months.

As one article stated:

For most of the next three months, only the justices and 39 law clerks … will be privy to the ruling. And even in an age of Twitter and YouTube, it won't leak. "I think the Supreme Court is the one institution that doesn't leak in modern-day Washington, D.C.," says Steven Engel, a lawyer who served a decade ago as a law clerk to Justice Anthony Kennedy.

But as Seneca the Younger (4 BC – 65 AD) stated: “Veritas odit moras.” The Latin to English translation: Truth hates delay.

(Photos: Associated Press)


The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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