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Conference-hall-with-microphonesThe Supreme Court Argument in the Affordable Health Care Case: A Good Decision But a Flawed Procedure? Imagine that a thoroughly prepared, highly seasoned U.S. Supreme Court appellate lawyer is unable to answer a question posed by a Supreme Court justice during argument. Precisely this scenario unfolded in a Supreme Court case that would have significant impact on health care in the United States. At oral argument in the Supreme Court in the case challenging the Affordable Health Care Act, a case in which the lawyers on all sides were as prepared as anyone is likely to be, a question was asked by a Supreme Court justice that the government lawyer did not expect. And he couldn’t answer it. At least not right then and there. So the question went unanswered because there was no other opportunity to give the court an informed answer after argument had ended.

The lawyer was of course one of the best in the field of Supreme Court argument. Supreme Court argument, the way it is done now and the way most all oral argument is done, takes more than just being analytical and proficient in the subject being argued. You have to be good at anticipating what the court wants to know as well as good on your feet at argument.

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