OK

I am a criminal defense attorney.  I file Suppression motions all the time.  I have won quite a few.

I once successfully got 5 pounds of marijuana and an illegally possesed firearm suppressed.  Although there was some discussion in court about the legal arguments that were going to be made and what cases provided precedents for my position and what cases supported the Commonwealth's position, what carried my client's position regarding the violation of his constitutional rights was written.

I wrote a 30 plus page brief for the Judge.   The Commonwealth wrote a reply.  I wrote a surreply.

Did the court discuss my oral arguments in his decision?  No.  He responded to the facts and the law I cited in my written brief and surreply and to some extent what the Commonwealth cited in its response to my brief.  BTW, he relied upon the cases I cited in my bref and surreply very heavily which means he read what I wrote and was convinced I was right on the facts and the law.

After listening to talking heads, SCOTUS scholars, opinion writers and newspaper reports, I am conmvinced of only one fact.  No one read the briefs at all.  

I listened to a "local barstool" expert opine based upon what he heard on FOX/CNN/MSNBC/etc while drinking happy hour priced golden beverages that "OBAMACARE was dead and would be declared unconstitutional"

"Really" I said. "Based on what?"

"The OBAMACARE opponents won the oral argument" he replied.

"You know that really does not matter."

"Yes, it does."

"No it doesn't.  Here's why.  First, every justice has read and dissected a number of briefs that were written and submitted before argument was even scheduled.   Second, after reading all of that, they ask law clerks to research it some more.  Third, if debates carried the day; Al Gore and John Kerry would have been president."

"Well its still important."

"Maybe, but the problem is all the experts who are giving their opinions and the 'journalists' who asked those experts what they thought of the oral argument --- none discussed what was already argued to SCOTUS.  Briefs, responses and surreplies contain a lot more argument than you get in an hour where you are constantly interrupted by SCOTUS justices who want you to answer specific questions.  SCOTUS argument is a great show but its just the last part of a very lengthy debate that is very interesting if you can connect what justices were asking to sections of briefs, responses, and surreplies to decypher what might happen when a decision is rendered.  If you can't, its like judging a baseball game by the 8th inning.  You're trying to predict what will happen at the end of the game without explaining how the first 7 innings went.  ITS STUPID."

"And" I continued.  "If the law gets upheld, I'll bet you $100, the experts you rely on will say 'That just goes to show that you can't predict what SCOTUS will do.'  BRILLIANT!"

I encourage everyone to read the briefing here, there is plenty of ammo to get 5 justices together to uphold the ACA.

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