The Texas license plate case as an instance of when oral argument is not an aid to prediction

The Supreme Court decided today that Texas did not violate the First Amendment's protections for free speech by denying the Sons of Confederate Veterans the ability to have a state-issued specialty license plate for their group. The Court held that Texas's license plates are government speech, and the Free Speech Clause does not bar the government from controlling the content of the government's own speech.

The government-speech theory that won the case was Texas's lead theory all along. This theory did not seem to fare very well at oral argument. But that only goes to show that oral argument is not always an aid to prediction.

One might wonder whether the unusual voting line-up in today's decision in Walker v. Texas Division, Sons of Confederate Veterans had something to do with the seeming mismatch between oral argument and outcome. Justice Thomas, who almost never speaks at oral argument, voted with Justices Ginsburg, Breyer, Sotomayor, and Kagan, and on the opposite side of Chief Justice Roberts and Justices Scalia, Kennedy, and Alito. Justice Thomas, of course, more regularly votes with the latter cohort. But this was not a contributing factor to the mismatch. Some of the Justices who voted for Texas on government-speech grounds seemed skeptical of those grounds at oral argument.

The most similar example of argument-outcome mismatch that comes to mind in recent years is McBurney v. Young. In that case, the Court upheld a challenged state law based on a categorical rule that the State led with and held tightly to even while it seemed to face significant headwinds at oral argument.

I would not go so far as to suggest that these two points make a line. But perhaps they can provide pre-opinion, post-argument reassurance to government lawyers when their categorical arguments don't seem to have found much judicial love at oral argument.