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.

Predicting the Winners in Henderson v. US and Tibble v. Edison Int’l

On Tuesday of this past week, the Court heard two oral arguments. 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.

The Court finally gave me an easy case to predict!  I predict a victory for the Petitioner (Henderson) in  Henderson v. United States, which asks whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

Figure 1.

Lee - 3.2.15 Henderson v US

The Court asked the Respondent (Solicitor General) 54 questions, 22 more questions than it asked the Petitioner (Henderson).  The large disparity in questions signals a likely victory for the Petitioner.

The second case, Tibble v. Edison Int’l, asks whether a claim that ERISA plan fiduciaries breached their duty of prudence by offering higher-cost retail-class mutual funds to plan participants, even though identical lower-cost institution-class mutual funds were available, is barred by 29 U.S.C. § 1113(1) when fiduciaries initially chose the higher-cost mutual funds as plan investments more than six years before the claim was filed.

Figure 2.

Lee - 3.2.15 Tibble v Edison

This case is a little bit more difficult to predict because it is what I call an asymmetrical case with 2 lawyers on 1 side and 1 lawyer on the other side.  The question count for the side with 2 lawyers may be inflated by some questions the Court may want to ask both lawyers for that side.

In this case, the Court asked the Petitioner’s side (Petitioner Tibble and the SG supporting the Petitioner) 35 questions, 6 more than it asked the Respondent (Edison International).  Because of the asymmetrical nature of the case, I don’t place too much stock in this differential.  Justice Sotomayor asked 5 questions during the Petitioner’s rebuttal, which all but accounts for the differential.

Moreover, if you look at the questions by individual Justice, the Court appears to be leaning to the Petitioner’s side.  Five Justices asked the Petitioner’s side fewer questions: Chief Justice Roberts (-1), Justices Kennedy (-2), Ginsburg (-4), Alito (-4), and Kagan (-5).  Three Justices asked the Respondent fewer questions: Justices Scalia (-8), Breyer (-5), and Sotomayor (-9).  Although the 3 Justices’ differentials are higher, I will stick with the 5 Justices who asked fewer questions to the Petitioner’s side.  I see a victory for the Petitioner (Tibble).

Weekly Roundup – February 27, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

In The New York Times, Adam Liptak reviews the Supreme Court’s position on the standing doctrine, which will be at issue in the upcoming case challenging Obamacare.

Arguments in Wednesday’s EEOC v. Abercrombie & Fitch centered on a question of responsibility: is it an employer’s or employee’s duty to identify potential conflicts that might arise from a company’s policies and an individual’s religious practices?

Should law firms have to pay the expensive bills that accrue in bankruptcy cases? The Court heard both sides of the issue in Wednesday’s Baker Botts v. ASARCO.

A fish is not a “tangible object,” according to the Court’s decision in US v. Yates—meaning that fisherman John Yates will not be held accountable for tampering with evidence when he disposed of undersized fish while being investigated for violating federal regulations.

In another ruling this week, the Court held that North Carolina’s dental board cannot regulate teeth whitening businesses, a decision that could change the makeup of similar boards across the country.

At SCOTUSblog, Professor Barbara Babcock reviews The Legacy of Ruth Bader Ginsburg, a new book by Scott Dodson.

Next week, the Court will hear a case that could set a new precedent for how child abuse is reported.

Steven Heyman guest blogs for ISCOTUSnow with a post examining the conservative-libertarian turn in First Amendment jurisprudence at the Supreme Court.

Predicting the Winners in EEOC v. Abercrombie & Fitch and Baker Botts v. ASARCO

The Supreme Court heard two oral arguments on Wednesday.  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.

The first case, EEOC v. Abercrombie & Fitch, asks whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Figure 1.

Slide1

As Figure 1 shows, the total question count favors the Petitioner (Solicitor General for the EEOC): the SG received 43 questions, while the Respondent (Abercrombie) received 48 questions.

The question count by Justice indicates a split along ideological lines.  The 4 liberal Justices asked Abercrombie more questions, which favors the SG: Ginsburg (+8), Breyer (+9), Sotomayor (+6), and Kagan (+1).  Three of the conservative Justices asked the SG more questions: Roberts (+3), Scalia (+15) and Kennedy (+5).

Justice Alito appears to be the key vote.  Departing from the conservatives, he asked the Respondent 4 more questions, which at least suggests a possible leaning to the SG’s position.  It would be a little surprising to have a block of Justice Alito and the four liberal Justices.  But, based on both the total question count and question count by individual Justice, I’ll go with a victory for the EEOC (SG), which sought a reversal of the Tenth Circuit’s decision.

The second case, Baker Botts LLP v. ASARCO, LLC, asks whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.

Figure 2.

Slide2

As Figure 2 shows, the total question count favors the Respondent ASARCO: the Petitioner’s side received 49 questions (Petitioner Baker Botts received 28 questions, the SG as amicus curiae supporting Petitioner received 21 questions), while the Respondent received 30 questions.  The 19 more questions to the Petitioner’s side is a large difference, even when discounting for the fact that the Petitioner’s side had two attorneys (which may inflate somewhat the number of questions for that side).  Unless the Justices were just tired in asking the Respondent questions as the last advocate in the last oral argument for the month of February, their relative lack of questions for the Respondent (30 questions is a small amount, below the mean for oral argument) seems to bode well for that side.  I’ll go with a win for the Respondent (ASARCO).

 

 

The Conservative Justices, the Constitution, and the First Amendment

This post is based on The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014), which Professor Heyman recently presented as the Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at West Virginia University College of Law.

In recent years, a conservative majority of the Supreme Court has issued a raft of decisions that have cheered the right and dismayed the left. To name only a few, District of Columbia v. Heller (2008) declared that the Second Amendment guarantees an individual right to own firearms. Citizens United v. Federal Election Comm’n (2010) and McCutcheon v. Federal Election Comm’n (2014) struck down key limitations on the ability of corporations and wealthy individuals to dominate the political process. And Burwell v. Hobby Lobby (2014) held that, under the Religious Freedom Restoration Act, family-owned corporations have a right to religious liberty which permits them to deny contraceptive coverage to their female employees.

Decisions like this clearly align with the political attitudes of the Justices. But I believe that these decisions also can be understood to reflect a deeper political and constitutional theory. To see this point, we must recognize that the conservative view of the Constitution is not monolithic, but includes two different strands. The first strand is a traditional conservative position which supports the government’s authority to enforce law and order and to promote traditional moral and social values. In contrast, the second strand is a libertarian position which emphasizes the need to protect individual freedom against government regulation. It is this second strand of conservative ideology that accounts for the decisions on gun ownership, campaign spending, and religious liberty that I have mentioned. This strand also underlies recent decisions that expand protection for property rights, cut back on affirmative action, and impose limits on the welfare state and the power of the federal government.

As Citizens United and McCutcheon show, this conservative-libertarian view is also one of the most powerful currents in contemporary First Amendment jurisprudence. A leading case is American Booksellers Ass’n v. Hudnut (7th Cir. 1985), which struck down a feminist anti-pornography ordinance. Judge Frank H. Easterbrook ruled that the state may regulate sexually explicit material to protect traditional morality, but not to promote gender equality – a rationale that he condemned as a form of authoritarian “thought control.” Likewise, in R.A.V. v. City of St. Paul (1992), Justice Antonin Scalia treated a city’s ban on cross-burning as an impermissible effort to impose political correctness by punishing the expression of racist ideas. And in Boy Scouts of America v. Dale (2000), Chief Justice William H. Rehnquist ruled that the First Amendment right to freedom of association permitted the Scouts to deny membership to gay persons on moral grounds. In all of these cases – most of which were decided by a vote of five to four – conservative judges used the First Amendment to protect their conception of individual liberty against laws that sought to promote social values like dignity, equality, and community.

The conservative-libertarian approach has made some valuable contributions to First Amendment jurisprudence. I believe that the conservative Justices are right to hold in cases like Rosenberger v. Rector & Visitors of the University of Virginia (1995) that public schools and universities may not discriminate against religious speakers, but must grant them the same rights and benefits they afford to other speakers. The libertarian outlook of the conservative Justices also may have helped to prevent a recurrence after 9/11 of the official suppression of radical speech that marred American law during the Cold War era.

Yet I also believe that the conservative-libertarian approach to the First Amendment has several serious flaws. The first problem is that cases like Citizens United and McCutcheon draw too close a connection between free speech and property rights and fail to recognize the ways in which unrestrained political spending and contributions can distort and undermine the democratic process. Second, decisions like Hudnut and R.A.V. extend too much protection to speech that injures, abuses, or degrades other people. Third, the judges we are discussing tend to be social conservatives as well as libertarians, and deep problems arise when these two aspects of conservative thought collide with one another, as they have in recent cases involving animal cruelty, violent video games, and Internet pornography. Fourth, by upholding traditional restrictions on expression, such as the obscenity doctrine, while striking down regulations that reflect liberal or progressive values, the conservative-libertarian approach fails to satisfy its own demand for ideological neutrality. And finally, the conservative-libertarian commitment to protecting free speech against the government focuses on individuals within the private sphere and not on those within governmental institutions. As a result, the approach tends to deny protection to those groups who are most vulnerable to state control, such as prisoners, public employees, and those who serve in the military.

The root problem is that the conservative-libertarian approach is based on an overly narrow and one-sided view of the self – a view that stresses the ways in which we are separate and independent individuals, but that fails to adequately recognize the social dimension of human life. We need to develop an approach to the First Amendment that is based on a broader and richer conception of the self, the society, and the nature of constitutional freedom. I call this approach liberal humanism. Like conservative libertarianism, this view stresses the value of liberty. But it understands liberty not merely in negative terms – as freedom from government intrusion or regulation – but also in more positive terms, as the capacity to pursue the full development and realization of the self, through one’s own individual activities as well as through social relationships and participation in the community. On this view, there is no inherent conflict between the value of individual liberty and social values such as dignity, equality, and community. Instead, the law should seek to reconcile these values with one another.

Free speech has both an individual and a social dimension: when individuals communicate with one another, they not only are engaging in self-expression but also are participating in a form of social interaction. It follows that the right to free speech carries with it a duty to respect the personality of others and their status as members of the community. For this reason, I would argue that the law should be allowed to impose reasonable restrictions on speech that injures, abuses, or degrades other people, including some forms of racist hate speech and violent pornography. Similarly, the right to free association should not necessarily empower groups who play a central role in the community, such as the Boy Scouts, to exclude individuals on invidious grounds like sexual orientation. Finally, the liberal-humanist view conceives of political speech as democratic deliberation among free and equal citizens, and thus would support some restrictions on activity that undermines our ability to engage in that process, such as unlimited electoral spending by corporations and wealthy individuals. In this way, we can reconcile First Amendment freedoms with other values that are essential to a liberal democratic society.

Predicting the Winners in Kerry v. Din and Coleman v. Tollefson

On Monday, the Supreme Court heard oral argument in two cases.  The Court was somewhat light in asking questions after several weeks off from oral argument. I’m predicting the winners based on the method of counting the number of questions.  After going a perfect 6 for 6 in calling the first decisions handed down, I had a rocky month of January and am now 9 for 14 (64%) in my predictions.  That’s not a great percentage.  Let’s hope I can turn things around, but the Court hasn’t made things easy for me this Term.  Today’s cases are no exceptions.

The first case, Kerry v. Din asks: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Figure 1.

Slide1

As Figure 1 shows, the total question count was pretty even: 44 questions for the Petitioner Solicitor General and 47 questions for the Respondent (Din).  The lower question count slightly favors the SG, but the difference is modest.  Part of the disparity arose from Chief Justice Roberts asking 12 questions to the Respondent and none to the Petitioner.   Five Justices, in fact, asked the Petitioner more questions: Kennedy (+2), Ginsburg (+2), Breyer (+8), Sotomayer (+3), and Kagan (+1).  Although the differentials (except for Justice Breyer) are also small, they favor the Respondent.   By contrast, Chief Justice Roberts  and Justice Alito appeared strongly leaning to the Petitioner (SG), asking the Respondent 12 and 5 more questions, respectively.  Justice Scalia asked 2 more questions to the Respondent.  Based on the question count, the case is a close call.  But I’ll stick with the overall count, plus the strongest differentials by Justice (Roberts and Alito), which favor the Petitioner (SG).

The second case, Coleman v. Tollefson, asks whether, under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

Figure 2.

Slide2

As Figure 2 shows, the total question count slightly favors the Respondent (Michigan SG): 36 questions to the Petitioner (Coleman) and 33 questions total to the Respondent’s side (21 to the Respondent and 12 to the Solicitor General supporting the Respondent).

The question count by Justice indicates a likely break along ideological lines.  Three conservative Justices (Roberts, Scalia, Alito) asked the Petitioner (Coleman) more questions, suggesting a leaning to the Respondent’s side.  Four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) asked the Respondent’s side more questions.   Appearing to be the swing vote, Justice Kennedy asked both sides 3 questions.

So the case is a toss-up.  But I’ll go with the small lower total question count and say a victory for the Respondent (Michigan SG).

Weekly Roundup – February 20, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Justice Ginsburg discussed her Court tenure, women’s rights, racism, and a dysfunctional Congress in an interview with MSNBC.

ISCOTUS director Chris Schmidt considers Justice Ginsburg’s celebrity turn, arguing that, while she is to be commended for engaging the public, she could be doing more.

In the LA Times, Michael Hiltzik opines that King v. Burwell—the impending Obamacare case—should never have been filed.

A look at the fraught history of housing discrimination in America, as the Court deliberates on an opinion in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

After Abigail Fisher, petitioner in 2013’s Fisher v. Texas, filed a new Supreme Court appeal last week, Linda Greenhouse in The New York Times considers whether the Court will again consider affirmative action.

On Wednesday, Mississippi asked the Supreme Court to review a lower court ruling which blocks a state abortion law.

How has President Obama fared against the court system, including the Supreme Court? Find out here.

Former Justice John Paul Stevens’s letter to the editor was published in The New York Times.