Predicting the Winners in Bank of America Cases

On Tuesday, the Supreme Court heard oral argument in two consolidated cases related to the treatment of underwater mortgages in bankruptcy.  I’m predicting the winners based on the method of counting up the number of questions.

Bank of America NA v. Caulkett asks “whether, under Section 506(d) of the Bankruptcy Code, which provides that ‘[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,’ a Chapter 7 debtor may ‘strip off’ a junior mortgage lien in its entirety when the outstanding debt owed to a senior lien-holder exceeds the current value of the collateral.”

Figure 1.

3.24.15 blog post chart

As Figure 1 indicates, the total question count was very close. The Petitioner (Bank of America) was asked 40 questions, while the Respondents were asked 43 questions.  That’s a small differential.

The question count by Justice was also very close.  Three Justices asked the Petitioner more questions: Justices Scalia (+6), Kennedy (+2), and Ginsburg (+3).  Three Justices asked the Respondent more questions: Justices Breyer (+8), Sotomayor (+4), and Kagan (+2). Chief Justice Roberts asked the same number of questions (2), as did Justice Alito (1).

It’s a toss-up.  But I’ll go with the Respondents, given the possible conservative alignment. It’s just a hunch–the numbers are too close to call.

 

Predicting the Winners in Walker v. Sons of Confederate Veterans; SF v. Sheehan

The Supreme Court heard oral argument two cases on Monday.  I’m predicting the winners based on the method of counting up the number of questions.  Both of today’s cases are difficult to predict based on the question count.

The first case is an important First Amendment case, Walker v. Texas Division, Sons of Confederate Veterans, which asks (1) whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

Figure 1.

Slide1

As Figure 1 shows, the total question count slightly favors the Petitioner (Texas SG), which received 5 fewer questions than Respondent (Sons of Confederate Veterans).

The question count by individual Justice presents a mixed picture, however.  Chief Justice Roberts and Justice Kagan asked the Petitioner 6 more questions–which suggests they are leaning to the Respondent.  Justices Ginsburg and Sotomayor asked the Respondent 6 more questions–which suggests they are leaning to the Petitioner.  Justice Kennedy also asked the Respondent 3 more questions, but he’s been less predictable based on his question count.  Justice Breyer asked the Respondent 2 more questions, a small differential.

Meanwhile, Justices Scalia and Alito asked both sides the same number of questions (11 and 5 questions, respectively).  Given these numbers, I think the case is tough to call based on simply the question count.  But my guess would be that Justices Scalia and Alito join Roberts and Kagan, who appear to be leaning to the Respondent’s side, which argued for affirmance of the Fifth Circuit’s decision holding that Texas’s denial of vanity license plates for Respondent’s Confederate flag violated the First Amendment.  I will give the edge to the Respondent.

The second case, San Francisco v. Sheehan, asks “(1) whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and (2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.”

This case is difficult to predict for several reasons.  First, it is an asymmetrical case with the Petitioner, the Respondent, and the Solicitor General arguing as amicus for vacatur in part and reversal in part.  Because the SG is allotted only 10 minutes, one cannot do a simple comparison of the three attorneys’ question counts.  Second, Justice Breyer recused, so only 8 Justices will be deciding the case.

Figure 2.

Slide2

As Figure 2 shows, the Respondent (Sheehan) received 49 questions, while the Petitioner (San Francisco) received 39 questions.  This count favors the Petitioner.   The SG did not side with the Petitioner, but the SG’s position of partial reversal and vacatur is more favorable to the Petitioner.

The question count by individual Justice also slightly favors the Petitioner’s side.  Only Justice Scalia asked the Petitioner more questions.  Chief Justice Roberts and Justices Kennedy and Thomas asked no questions to the Petitioner, whereas 7 of the 8 Justices asked questions to the Respondent.  Justices Ginsburg, Alito, and Kagan asked the Petitioner fewer questions than the Respondent by small margins (1, 1, and 3 respectively).  Justice Sotomayor asked both sides the same number of questions.

Based on these numbers, I will go with a reversal or vacatur of the decision below.  It’s too difficult to tell simply based on the question count whether the Court will favor the Petitioner’s or SG’s position, so I will leave it as reversal of some kind.

Weekly Roundup – March 20, 2015

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The world of Justice Sonia Sotomayor: a look at the justice’s autobiography.

There is still one question left to settle before next month’s same-sex marriage case at the Supreme Court—who will get to argue the case?

In The New York Times, Professor William Baude asks whether Obama could bypass the Court if the president’s health care plan is overruled. In the Chicago Tribune, Professor Noah Feldman answers with a resounding no.

As the justices decide whether to address Wisconsin’s voter ID law, Linda Greenhouse argues that the Supreme Court suffers from an identity crisis on voting rights.

This week, the Court also considered taking a case seeking to lower vaccine court standards—making it easier for people injured by vaccines to win compensation from the government.

Can states control the messages that appear on specialty license plates? That depends on if the “voice of the license plate” belongs to the government or the motorist, a question the Supreme Court will consider next week.

Weekly Roundup – March 13, 2015

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In the Washington Post, Ilya Somin argues that federalism principles cannot be used to defend the Administration’s position in the latest Obamacare challenge.

What would happen if the Court rules against Obamacare? The Department of Health and Human Services warned that nearly 8 million people could lose health care subsidies, a situation for which the administration has no backup plan.

A case in which a Michigan same-sex couple has not been allowed to jointly adopt children is now headed to the Supreme Court.

The Economist speculates on the path of least disruption for the Court in deciding its two biggest cases this Term on same-sex marriage and health care.

By throwing out a lower court ruling in favor of the government, the Court revived the University of Notre Dame’s religious objections to Obamacare’s requirement for contraception coverage.

The Court decided not to hear two appeals relating to U.S. treatment of detainees at the Guantanamo Bay detention facility.

At a speech at Davidson College on Thursday, Justice Sotomayor spoke of the need for more diversity on the bench.

As a tribute to women’s accomplishments in the field of law, artist Maia Weinstock created custom LEGO figurines of Justices O’Connor, Ginsburg, Sotomayor, and Kagan.

ISCOTUS director Chris Schmidt asks whether Justice Kagan’s colorful and conversational style of prose can engage a lay audience.

Are You Talking To Me? The Justices and Their Audience

Last month, in her dissent in Yates v. U.S., Justice Kagan reminded us again of why she has earned a reputation for her readable, engaging, even entertaining opinions. Yates involved a prosecution of a fisherman under the Sarbanes-Oxley Act. After a federal agent found that the fisherman had some undersized red grouper in violation of federal regulations, the fisherman tossed his fish overboard to avoid being fined. He was charged with violating the provision of the Sarbanes-Oxley Act that prohibits the destruction of any “tangible object with the intent to impede, obstruct, or influence” a federal investigation. A five-justice majority held that the “tangible objects” protected in Sarbanes-Oxley, which Congress passed in 2002 in an effort to clean up the financial markets, did not include fish. Kagan, joined in dissent by Justices Kennedy, Scalia, and Thomas, disagreed. And she did so with her familiar mix of appeals to common sense and a touch of humor:

As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” … A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).

This is apparently the first time Seuss has ever been cited in a Supreme Court opinion.

As Mark Wilson wrote in a piece in Findlaw on the justice’s “conversational tone,” Kagan has developed a distinctive voice on the bench. “Unlike justices of years past,” he writes, “Kagan seems to want more public involvement in the Court. Conversational, understandable language breaks down the barriers between judges and everyone else.” Laura Krugman Ray wrote an essay last year examining Kagan’s “remarkably conversational” style of writing. “She employs a range of rhetorical strategies to speak directly to the reader, suggesting that her enterprise is less indoctrination than a more congenial mode of persuasion. Leavening her legal prose with colloquial diction, she engages the reader in something approaching an informational, if one-sided, chat.” Ray contrasts this conversational style with Justice Scalia’s “indignant” style, in which he addresses the reader as “a man of common sense whose patience is tried beyond endurance by the follies of his colleagues.” If Scalia is the fiery orator, pronouncing the one true path and denouncing any deviation from it, Kagan is the supportive but challenging teacher. “I approach opinion writing much as I used to approach the classroom,” she has said.

Kagan’s efforts to engage her readers, to bring them into her line of thinking by this subtle form of persuasion, brings two points to my mind. First, a point of historical perspective. How distinctive and innovative is her approach to writing opinions? Contrary to Wilson’s suggestion that she is breaking from a pattern set by “justices of years past,” it would seem that there have always been justices who seek to engage an audience broader than the community of legal professionals. The famously aphoristic style of Justice Holmes was intended to speak to a broader audience, as were the stylish phrasings of Justice Jackson. Chief Justice Warren lacked the artistry of Holmes or Jackson, but his writing had a certain directness that transcended the language of bench and bar—sometimes quite self-consciously so, as when he wrote the Brown decision with the goal of making it short, readable, and non-accusatory. Among the justices from the not-too-distant past, Hugo Black might be the one who best represents a tradition of writing direct, accessible judicial prose. All of this is to say that while Justice Kagan is certainly charting her own course by crafting a writing style appropriate for present-day sensibilities, the goal of writing opinions for a broader audience is far from new.

This brings me to a second point: Who is Justice Kagan writing for? Does the style of writing affect the quantity or quality of public discourse surrounding Court opinions? It is hard not to admire efforts of justices to break out from the over-long, stilted, legalistic rhetorical conventions of legal opinions. If nothing else, her colorful style helps to hold the attention of the tired law student reading a casebook in the wee hours of the night. It livens up the blogosphere for a few days. It will enhance her reputation in the history books. In the end, however, does it really achieve what I assume is Kagan’s primary intention, which is to reach out and persuade a broader audience? It is hard to know, of course. As is generally the case when it comes to examining the relationship between the justices and the American people, the communication pathways between the Court and its potential audiences are complex and often dysfunctional. Regardless, Justice Kagan should be applauded for making an effort to break through these obstacles.

Weekly Roundup – March 6, 2015

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The big news at the Court this week was the return of Obamacare in King v. Burwell. See some of the many takes on the case below:

In defiance of the Supreme Court’s ruling, the Alabama Supreme Court barred same-sex marriages from proceeding in the state on Tuesday.

The Court announced the argument schedule for its final sitting of this Term, which will include the highly anticipated same-sex marriage cases.

Following the Script: The ACA at the Supreme Court, Round 2

So now that we’ve had (if not yet heard) oral arguments in King v. Burwell, the Affordable Care Act’s second round at the Supreme Court, what have we learned about where the justices stand on this stunningly consequential case? Not all that much, I would say. Court watchers have developed a relatively predictable script for how the justices are supposed to act, and yesterday the justices were intent on performing their assigned roles. (Transcript here.)

The four liberal justices—Justices Breyer, Ginsburg, Kagan, and Sotomayor—rallied together yet again in the face of the latest conservative assault. They went after the plaintiff’s lawyers right from the start. Among the four, Justice Kagan distinguished herself once again as a particularly effective and charismatic presence on the bench.

Leading the conservative sympathizers with the challenge to the ACA were Justices Scalia and Alito. Justice Scalia was his usual pugnacious, sarcastic, and funny self. When he asked with faux naiveté why Congress can’t just fix the problem with the statutory language, the Solicitor General responded, “Well, this Congress ….” getting some laughs from the audience, many of whom were members of Congress. Justice Alito demonstrated why he has earned a well-deserved reputation as a forceful, incisive questioner, effectively pressing the government on various points. He also submitted the possibility of softening the dramatic consequences of a ruling against the government, suggesting that the Court might delay implementation of its ruling so as to allow time for the affected states to respond.

Justice Thomas was silent, as usual.

Justice Kennedy played his undecided swing justice role to the hilt. He asked skeptical questions of both sides, making sure that he made clear that his vote was up for grabs and ensuring that he had the full attention of the lawyers and the press.

Chief Justice Roberts fulfilled his role by not doing much of anything. He aspires to be the Court’s statesman, standing above the fray. Usually an active questioner, yesterday he was a mostly silent observer.

So there was plenty of drama, but not many surprises. We’re left about where we were before oral arguments: it still seems highly unlikely that the Court is going to rule against the government and tear apart the ACA, but there is clearly strong support among the conservative justices for the challengers’ arguments.

Predicting the Winner in King v. Burwell–Will Obamacare stand?

The Supreme Court heard oral argument in the Obamacare case, King v. Burwell, on Wednesday in 90 minutes of extended oral argument. I’m predicting the winners based on the method of counting the number of questions. After 19 decisions handed down, my predictions have been correct 63% of the time, which means I have fallen off after going 100% correct in the first 6 decisions.

King v. Burwell is the second time the Court considered the legality of Obamacare.  This time, the question presented is whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

The first time around, Chief Justice Roberts joined the 4 liberal Justices to uphold the constitutionality of the Act.  This time around, it looks like the Chief holds the decisive vote again.

Figure 1.

Slide1

As Figure 1 above shows, the total question count favors the Respondent (Solicitor General), who received 5 fewer questions.

But the question count by Justice tells the real story.  Not surprisingly, the Justices split along ideological lines.  Four conservative Justices asked the Respondent (SG) more questions: Chief Justice Roberts (+2), and Justices Scalia (+14), Kennedy (+3), Alito (+18).  Notice, though, the differential is very small for Chief Justice Roberts, who asked only 4 questions total in the 90 minute session (far fewer than he asked in the first Obamacare case):  the Chief asked 1 question to the Petitioner (which was more of a helpful comment to help the Petitioner explain why he changed his position from the first case) and 3 questions to the Solicitor General (two about standing, which doesn’t seem it will be an issue and  one about Chevron deference).  Chief Justice Roberts may have been purposely playing things close to the vest, knowing that Court watchers expect him to be the key vote again.  Likewise, Justice Kennedy had a modest differential of 3 more questions for the Solicitor General–7 questions to the SG compared to 3 questions to the Petitioner.  But some of those questions related to the possible application of the doctrine of constitutional avoidance, which, if applied, would favor the Solicitor General.

The four liberal Justices all asked the Petitioner more questions by substantial amounts: Justices Ginsburg (+15), Breyer (+9), Sotomayor (+6), and Kagan (+13).

So who wins?  It’s a toss up.  Remember, of course, that I am basing my predictions based on the question counts (total and individual).  Based on the small differentials of the Chief Justice (+2) and Justice Kennedy (+3) that slightly favor the Petitioner, I will go with the Petitioner (King).  I am also swayed slightly by the fact that the Chief Justice asked no substantive questions to the Petitioner.  These are very small differentials and Justice Kennedy especially has not been easy to peg in the past based simply on his question count, so my confidence level is not high.  As the press has reported, in his questions, Kennedy floated a theory of constitutional doubt that would, if applied, favor the Solicitor General.  But if I stick to the question count method, Kennedy’s question count favors the Petitioner.  That’s as far as this method will go.   At least we know who holds the swing votes.

Predicting the Winners in LA v. Patel and Davis v. Ayala

The Supreme Court heard two oral arguments on Tuesday. I’m predicting the winners based on the method of counting the number of questions. After 18 decisions handed down, my predictions have been correct 66.7% of the time, which means I have fallen off after going 100% correct in the first 6 decisions.

The first case, City of Los Angeles v. Patel, asks (1) whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

The Court was extremely hot in questioning the advocates in the first case.  By my count, the Court asked a total of 134 questions–which I believe is a record for this Term.

Figure 1.

Slide1

As Figure 1 indicates, the total question count favors the Petitioner (City of Los Angeles), whose side (along with the SG as amicus supporting it) received 59 questions, 16 fewer than the Respondent (Patel).

The question count by individual Justice is not as clear this time around, given that Justice Breyer apparently asked no questions (or was recused or absent–I cannot tell).  The conservative Justices appeared to favor the Petitioner, asking more questions to the Respondent: Chief Justice Roberts (+14), and Justices Scalia (+3), Kennedy (+1), Alito (+16).    Justice Kennedy’s differential was only 1 question, though. Curiously, Justice Ginsburg also asked the Respondent more questions (+6).   Two liberal Justices asked the Petitioner more questions: Justices Sotomayor (+16) and Kagan (+8).

Based on these numbers,  it looks like an ideological split.  I will predict a victory for the Petitioner (City of Los Angeles).

The second case, Davis v. Ayala, asks whether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.

After the first case, the Court may have been tired in asking questions.  Justice Ginsburg, along with Justice Thomas, asked no questions.  Justice Breyer asked no questions as well, but he may not have been at the oral argument (since he asked no questions in the first case).  The Court asked a total of 72 questions, which is nearly half the amount it asked in the first case (and even 3 questions fewer than it asked the Respondent alone in that case!).

Figure 2.

Slide2

As Figure 2 indicates, the total question count favors the Respondent (Ayala).  The Court asked the Petitioner 43 questions, 14 more than it asked the Respondent.  The question count by Justice is less interesting because only 6 Justices asked questions.  Four Justices (Scalia, Alito, Sotomayor,  and Kagan) asked the Petitioner more questions.  Two Justices (Roberts and Kennedy) asked the Respondent more questions.  Based on these numbers, I will go with a victory for the Respondent (Ayala).

Predicting the Winners in AZ Legislature v. AZ Indep. Redistricting and Ohio v. Clark

The Supreme Court heard two oral arguments on Monday. I’m predicting the winners based on the method of counting the number of questions. After 17 decisions handed down, my predictions have been correct 65% of the time, which means I have fallen off after going 100% correct in the first 6 decisions.  Both of today’s cases are very close.

The first case, Arizona Legislature v. Arizona Independent Redistricting, asks (1) Whether the Elections Clause of the United States Constitution and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

Figure 1.

Lee - 3.3.15 AZ Legislature

As Figure 1 shows, the total question count favors the Appellee (Arizona Independent Redistricting), whose side (along with amicus Solicitor General) received 9 fewer questions than Appellant (Arizona Legislature).

However, the question count by individual Justice paints a very close case.  Four Justices asked the Appellant more questions: Justices Kennedy (+7), Ginsburg (+2), Sotomayor (+5), and Kagan (+17).  Justice Kagan’s unusually high number of questions was effectively responsible for the difference in the number of questions between the two sides.  Four Justices asked the Appellee’s side more questions: Chief Justice Roberts (+7), and Justices Scalia (+9), Breyer (+2), and Alito (+3).  Interestingly, Justice Kennedy asked the Appellant seven more questions, similar to  three liberal Justices, while Justice Breyer asked a couple more questions to the Appellee’s side similar to three conservative Justices.

To me, this case is a toss-up on the question count.  I’ll go with the Appellant (Arizona Legislature) based on the possible conservative line-up and the difficulty of predicting Justice Kennedy based on his question count.

The second case, Ohio v. Darius Clark, asks (1) Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Figure 2.

Lee - 3.3.15 Ohio v Clark

As Figure 2 shows, the total question count slightly favors the side of the Petitioner (Ohio), which (along with the SG supporting Petitioner), was asked 5 fewer questions than the Respondent (Darius Clark).

The question count by individual Justice presents another close case.  Four Justices asked Petitioner’s side more questions: Chief Justice Roberts (+3), and Justices Scalia (+7), Kennedy (+1), and Kagan (+3).  Four Justices asked the Respondent more questions: Justice Ginsburg (+3), Breyer (+1), Alito (+7), and Sotomayor (+8).

Again, this case is a toss-up based on the question count.  I’ll go with Respondent (Clark), but I’m not confident in the prediction.  Justice Kennedy asked only 1 more question to the Petitioner’s side, and I’m not sure the division will be along ideological lines.