“Predictions vs. expectations at the Supreme Court”

Steve Benen writes. It sets forth an answer to some of the hate mail I’ve been receiving since my Slate piece appeared Friday.

Benen:

The question, then, isn’t why “the left get it so wrong,” but rather, why the entire legal community seems so amazed by the apparent trajectory of last week’s arguments. It seems to me the predictions going into last week were fine; it was the expectations that were off.

The predictions were based on reliable guide posts: precedent, the facts of the case, the court’s traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices’ avoidance of activism. This is routine whenever the Supreme Court hears a high-profile case — court watchers consider what these justices have said and done before, and they shape predictions accordingly.

And that’s exactly what happened in advance of oral arguments in this case. When analysts expected a 7-2 or 8-1 ruling in support of the administration, they weren’t just picking numbers out of thin air; this was a reasonable estimate based on everything we know about the court, the law, and these justices.

So why do the predictions look ridiculous? Because the legal community — analysts, scholars, journalists, attorneys, former clerks — appear to have wildly overestimated the extent to which conservative justices give a damn about precedent, the facts of the case, the court’s traditions and respect for restraint, lower-court rulings, the integrity of the institution, and the justices’ avoidance of activism.

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