Reading the tea leaves
In some cases it can be reasonably obvious which way the Supreme Court justices lean. Oral argument and questioning in United States v. Stevens and District of Columbia v. Heller, for example, left most observers fairly certain which way the ultimate opinion would rule.
In the case of Tapia, I’m only really sure of Justice Scalia’s vote. Justice Sotomayor seemed to lean pretty clearly one direction, but I have no idea if she was merely feeling out the waters on her argument, vocally pushing it to her colleagues, or just testing the arguments presented to her. And I couldn’t say how she might respond to the ultimate assertion made by Tapia (rather, the lawyer who argued for her) that “Congress has spoken” and that her desired outcome (supposing she indeed desires it) had been foreclosed.
In the case of Microsoft I have even less to go upon. I consider this the more technically challenging and complex argument, both for me to understand and for the justices to approach. Much of it went over my head. I suspect more justices will be drawn to the argument that Justice Cardozo described the standard of proof in patent cases in his long-ago opinion, simply based on discussion of it during the argument, and the appeal of referring to it under the concept of stare decisis (that is, to generally stand by prior decisions — although when one makes exceptions, as all justices do, is key to applying the doctrine). That doesn’t bode well for Microsoft. (Particularly because with Chief Justice Roberts’s recusal, Microsoft must count to count to five — but i4i only needs to count to four for their win to be upheld. In that case i4i would win the day without the case setting precedent to conclusively establish a standard of proof in patent litigation.) But I could easily be wrong.
I didn’t know exactly what to expect when I decided to make the trip to D.C. to go to an oral argument. Would it be worth the time to endure a mostly sleepless night, to go to arguments I might well not understand, at the expense of time and money it would take to be there? I was pretty sure the answer was yes (after buying the plane ticket to D.C. I was practically giddy with anticipation, and anyone who knows me knows how rarely I get that excited), but I didn’t know for sure.
Looking back, it was well worth the effort. Getting to see the highest court in the country in session, on matters of strong importance, even if I didn’t fully understand all that was discussed, was a priceless experience. And it was all the better by preparation spent reading briefs and considering the arguments presented. (I strongly recommend doing this if you ever consider visiting.) There’s also something to be said for the experience of just sitting in the line to get in, with people of all varieties all waiting to get in, each with as equal a right as yours to be there. (Well, almost equal: there’s that Supreme Court bar line, but they certainly put in the time for it. Although I have to admit I don’t immediately see a rational relationship between that investment of time, money, and labor and the ability to see arguments more easily.)
Anyway: it was definitely worth doing, and if I have reason to be in the area again in the future at an opportune time, I’ll probably try to do it again.