The Sit-Ins, the Supreme Court, and the Constitution

On Wednesday, a South Carolina court made national news when it vacated the civil rights-era convictions of a group of lunch counter sit-in protesters. The convictions stemmed from a protest in Rock Hill, South Carolina, on January 31, 1961. A group of African American students from Friendship College took seats at a local five-and-dime lunch counter, which had a policy of only allowing whites to be seated at the counter. The manager called the police and the protesters were arrested on trespassing charges. After being convicted in the local court, the judge gave the students a choice of paying a $100 fine or serving a thirty day prison sentence. The group that became known as the “Friendship Nine” chose prison.

(Numerous news accounts erroneously assert that the Friendship Nine initiated the “jail, no bail” strategy in the sit-in movement. This strategy had already been in use since the previous spring.)

On Monday, a lawyer for the Friendship Nine introduced a motion in court that asked for a new trial and acquittal, arguing that the convictions had been “predicated upon values and beliefs that have since been deemed to violate the fundamental guarantees of the United States Constitution.”

The motion’s assertion that the convictions “have since been deemed” unconstitutional is not obviously correct, however. The Supreme Court had numerous opportunities in the early 1960s to declare as much, but a majority of the justices never agreed to this conclusion. The Court, that is, never squarely held that a state violated the equal protection clause of the Fourteenth Amendment when it arrested and convicted on trespass charges someone who refused to leave a privately owned public accommodation, such as a drug store lunch counter, because the business had a whites-only service policy.

Between 1961 and 1964, the Supreme Court justices faced round after round of appeals of sit-in protesters who had been convicted on trespass or disorderly conduct charges. The sit-in cases were the great aberration of the Warren Court. At a time when the justices confidently reworked one constitutional doctrine after another, often in response to the moral challenges of the civil rights movement and often in the face of considerable public resistance, they broke pattern in these cases. The Court found ways to side with the students, overturning their convictions on narrow, fact-based grounds, while avoiding the looming constitutional issue. In late 1963, in the case of Bell v. Maryland, when another minimalist opinion appeared impossible, a majority of the Court, led by Justice Hugo Black, was prepared to explicitly reject the students’ constitutional claim and hold that the Constitution did not require racially equal access to public accommodations. This outcome was only averted when, in the spring of 1964, with Congress poised to pass the Civil Rights Act, Justice Black’s majority dissolved, and a fractured Court issued yet another narrow opinion, with no majority to resolve the constitutional question one way or the other.

This is not to say that the motion’s assertion–that the Friendship Nine’s trespassing convictions have been deemed unconstitutional–is wrong. But to defend this assertion requires a broader conception of constitutionalism than the proclamations of the Supreme Court. One might look to Congress and specifically to the Civil Rights Act of 1964 as establishing the unconstitutionality of racial discrimination in public accommodations. With this landmark legislation, Congress prohibited racial discrimination in public accommodations across the nation. Ultimately, the legislative arena proved more receptive than the judiciary to the blend of morality, politics, and constitutional principle that characterized public debate over the sit-ins.

We are used to looking to the judiciary for answers to contested constitutional questions; to look to Congress for this purpose is more unusual, more controversial. But in this particular case it makes sense to do so. At the time of Bell, a majority of the Court was open to the possibility of holding the sit-in convictions a violation of the equal protection clause. The fact that this majority never solidified into an opinion of the Court had more to do with concerns about doctrinal constraints, the institutional competency of the Court, and the impending passage of the Civil Rights Act than with substantive disagreement with the underlying constitutional principle. Although the drafters of the Civil Rights Act ultimately relied on Congress’ Commerce Power as the basis for the law, many executive branch lawyers and members of Congress would have preferred to rest the law on Congress’ authority to enforce the provisions of the Fourteenth Amendment—a path that would have more squarely presented a congressional conclusion that the sit-in prosecutions ran afoul of the Constitution. And, as I have argued at length elsewhere, it is pretty clear that the Court would still have upheld the Civil Rights Act if it were based on the Fourteenth Amendment enforcement power rather than the Commerce Clause.

The Friendship Nine’s claim that their conviction violated the Constitution seems so right and so true today. Yet if we believe it to be so, it is worth considering the vision of constitutional development on which this claim depends. Under this vision, the courts, the traditional focal point for accounts of constitutional disputes, play a central role in this story, but they are ultimately just one actor among many.

The Waiting Game

The big same-sex marriage case. We now know it’s coming (arguments in April). We’re pretty sure we know how it’s going to come out (same-sex marriage bans will fall across the nation). And assuming it comes out the way we think it will, when it comes down, sometime in late June, we know it will be a landmark moment in the history of the Supreme Court and the nation.

So we are engaged in a waiting game, a rather remarkable one, I believe. Waiting around for the Supreme Court is a fact of life. It is a deliberate and deliberative institution, so Court-watchers are often reduced to small talk while waiting for the Court to take a case, to hear arguments in a case, and then to decide a case. But usually waiting on a major ruling from the Supreme Court involves some degree of suspense as to that ruling’s outcome. In the long lead-up to Brown v. Board of Education (it was argued twice before the Court), smart money was on a desegregation ruling, but few were overly confident in that prediction. Recent blockbusters such as the Affordable Care Act case were impossible to predict (after oral arguments, many assuredly announced the Affordable Care Act’s days were numbered). But it is hard to recall a case of the magnitude of the upcoming same-sex marriage case in which there was so little uncertainty as to what the Court was going to do.

One roughly parallel case might be the 1967 decision striking down bans on interracial marriage, Loving v. Virginia—the case the upcoming same-sex marriage ruling will join as an iconic statement on the question of marriage equality.

For over a decade following the 1954 Brown decision, the Court carefully avoided directly confronting the question of whether the so-called antimiscegenation statutes violated the Constitution. The issue, the justices felt, was too emotional, a ruling striking down these laws likely further challenging the Court’s legitimacy at a time when it was having trouble enough getting the South to accept school desegregation. But by late 1966, the Court felt the time was right. The civil rights movement had transformed the nation, affecting attitudes and rewriting laws. The Court had struck down Florida’s law prohibiting cohabitation of interracial couples in 1964. The idea of interracial marriage was still overwhelmingly unpopular, but the belief that such marriages should be prohibited by legal sanction was in decline. (A poll in 1965 found public opinion divided on laws prohibiting interracial marriage.)

In April 1966, when the Virginia Supreme Court rebuffed a challenge to the state’s antimiscegenation law, the path to the Supreme Court was set. “The most explosive issue in American race relations may soon plummet into the chambers of the U.S. Supreme Court,” predicted African American journalist Carl Rowan at the time. Interracial marriage was the “emotional Rubicon over which millions of Americans have not yet crossed,” wrote Rowan.

The following October, looking ahead to the upcoming Supreme Court term, New York Times Court reporter Fred P. Graham wrote that if the Court took the case “it is a foregone conclusion” that they would strike the law down as unconstitutional.

On December 12, 1966, the Supreme Court announced it would hear the challenge to Virginia’s antimiscegenation law. “In accepting the appeal,” reported the New York Times, “the Supreme Court set the stage for a historic ruling on the last vestige of ‘Jim Crow’ legislation to survive in the South—the 17 states banning intermarriage between whites and Negroes.”

Unlike the Court’s decision to take up the gay marriage issue, however, the granting of certiorari in the Loving case was not front-page news (the story could be found on p. 40 of the Times, p. 6 of the Washington Post). News reports identified the case as important, but not necessarily transformative. Commentators portrayed the case as a kind of mopping up operation. After years of “expansive use of judicial power,” explained the Times’ Graham, the Court looked to spend a term “tightening nuts and bolts,” and among the bolts that needed tightening was “administer[ing] the coup de grace” to the last segregation laws.

Although the outcome of the Loving case was as predictable as the outcome of the upcoming same-sex marriage case, most commentators simply did not consider Loving to be as significant as what we expect of the same-sex marriage case. Perhaps there are other parallel cases that come closer, but it seems to me that the Court waiting game we’re playing right now is unique.

Weekly Roundup – January 23, 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.)

After much speculation and urging from both sides in the debate, the Supreme Court agreed last Friday to review a case on same-sex marriage. The Court’s ruling could potentially legalize same-sex marriage in all 50 states.

Now that the Court has moved to address the issue of same-sex marriage, attention is shifting to President Obama’s role regarding the issue. At Politico, Josh Gerstein asks, “will the Court cement the president’s gay rights legacy?

In the New York Times, Linda Greenhouse argues that whatever the Court’s ruling on same-sex marriage, it won’t end the debate for Republicans.

In the Holt v. Hobbs decision on Tuesday, the Court ruled that an Arkansas prison’s ban on growing beards had violated the religious liberty rights of its inmates.

The justices appeared split along ideological lines in Tuesday’s Williams-Yulee v. Florida Bar case, which asks whether states can prohibit personal appeals for campaign contributions by judicial candidates.

The Court also appeared divided over the issue of housing discrimination on Wednesday. But the split was not entirely as expected.

Protesters disrupted Court proceedings on Wednesday, the five-year anniversary of the Court’s controversial decision in Citizens United, which removed limits on campaign contributions by corporations and unions.

Predicting the Winners in TDHCA v. Inclusive Communities Project and Rodriguez v. US

The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. asks whether disparate-impact claims are cognizable under the Fair Housing Act.

As Figure 1 shows, the overall question count was very close: 44 questions to the Petitioner (Texas Dep’t of Housing) and 46 questions total to the Respondent (Inclusive Communities Project) (22) and the Solicitor General supporting the Respondent.  The question differential may suggest a slight edge to the Petitioner, but with a margin of error, it seems like a toss-up.

Figure 1.


The question count by individual Justice suggests alignments along ideological lines, although Justice Scalia’s question count departs from the conservative line.

The question differentials that favor the Petitioner are from Chief Justice Roberts, and Justices Kennedy and Alito, who asked the Respondent’s side (including SG) 10, 2, and 5 more questions respectively.  On the other side, Justices Breyer, Sotomayor, and Kagan asked the Petitioner 3, 5, and 1 more question respectively. Justice Ginsburg asked both sides 4 questions.

That leaves Justice Scalia, who asked the Petitioner 6 more questions than he asked the Respondent’s side.  Unlike the break down for the other conservative Justices, the question disparity suggests a possible leaning toward the Respondent’s side,  Of course, this result would be a quite surprising alignment if Justice Scalia joined the 4 liberal Justices.   But I’ll go with what’s suggested by the numbers and predict a victory for the Respondent, who argued that disparate impact claims are cognizable under the Fair Housing Act.

The second case, Rodriguez v. United States asks whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification.

As Figure 2 shows, the overall question count favors the Respondent (Solicitor General): the Petitioner (Rodriguez ) received 56 questions, while the Respondent received 48 questions or 8 fewer questions.  The differential is not large, but it suggests a leaning toward the Respondent.

Figure 2.


The individual count by Justice also favors the SG.  Only Justices Breyer and Kagan asked the SG more questions.  Based on these numbers, I’ll predict a victory for the SG, who argued “a police officer may conduct a dog sniff during a traffic stop, after issuing a traffic ticket, so long as the detention is not unreasonably prolonged.”

Predicting the Winners in Armstrong v. Exceptional Child Center and Williams-Yulee v. Florida Bar

The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.  Both cases are very close calls.

Armstrong v. Exceptional Child Center, Inc. asks whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute.

This is a close call, but my prediction is win for the Petitioner (Armstrong).  As Figure 1 shows, the Court asked the Respondent 53 questions, 8 more than the total questions asked of both Petitioner and Solicitor General as amicus supporting the Petitioner.

Figure 1.


The question count by Justice suggests a close case, however. The question differentials that favor the Petitioner were from Chief Justice Roberts and Justices Scalia, Alito and Breyer, who asked the Respondent 8, 12, 5, and 3 more questions respectively compared to the Petitioner’s side.  On the other side, Justice Kennedy’s question count favors the Respondent, but he’s less predictable based on his question counts. Kennedy asked 5 questions to the Petitioner’s side but no questions to the Respondent.   Justices Ginsburg (+2), Sotomayor (+10), and Kagan (+3) also asked more questions of the Petitioner’s side.  With a pretty even balance on the counts by individual Justice and Justice Thomas possibly joining the three conservative Justice group that appears to be leaning toward the Petitioner, I’ll stick with the overall question count that favors the Petitioner, who argued that Medicaid providers have no private right of action under the Supremacy Clause in this case.

The second case, Williams-Yulee v. The Florida Bar, asks whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

As Figure 2 shows, the total question count was very close: the Petitioner received 45 questions, while the Respondent received 44 questions, by my count.  With a margin of error, it’s basically a tie.

Figure 2.


The question count by individual Justice was very similar to the count in the earlier Armstrong case in terms of alignments.  The question differentials that favor the Petitioner were from Chief Justice Roberts and Justices Scalia, Breyer, and Alito, who asked the Respondent 5, 9, 8, and 3 more questions respectively than they asked the Petitioner.   On the other side, the question differentials that favor the Respondent were from Justices Kennedy (+7), Ginsburg (+5), Sotomayor (+2), and Kagan (+7), who asked more questions to the Petitioner (by the amounts indicated).

This is a close case, but I will go with a win for the Petitioner, who argued the Florida’s rule of judicial conduct violates the First Amendment.  Just as in the Armstrong case, I like the strength of the highest question differentials of the Chief and Justice Scalia plus add in Justices Breyer, Alito, and possibly Justice Thomas.  My confidence level is not very high, but I’ll give a slight nod to the Petitioner based on the question count by individual Justice.

Martin Luther King, Jr. and the Law

[Reposted from the IIT Chicago-Kent Faculty Blog]

Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

Law as an Obstacle to Racial Justice

Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”

In this particular case, King might have won in the court of public opinion and certainly in the court of history, but he lost in the highest court of the land. When the Supreme Court finally decided to hear an appeal of the conviction of civil rights protesters for violating a state court injunction ordering them to refrain from demonstrating, the Court ruled 5-4 against the civil rights protesters. King and his cause generally fared well before the Supreme Court, but this case was one of a handful of exceptions. Justice Stewart, writing for the Court, reprimanded the protesters in Walker v. Birmingham:

This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

For King, unjust laws—and the courts that enforced them—were obstacles in the cause of racial justice.

Law as an Opportunity for Advancing Racial Justice

And then there were the laws that King and other civil rights activists wanted: school desegregation orders; non-discrimination requirements for restaurants, hotels, and private employers; voting rights protections. King’s attitude toward these kinds of civil rights laws is also quite interesting.

King understood court decisions and legal reform as a central component of broader political and social struggle. Although he certainly saw the importance of courtroom decisions and legislation, when he talked about the power of law, he tended to focus on the difficult work required to give life to basic legal principles. Judicial and legislative breakthroughs were not just moments for celebration. They were calls to action.

King’s sometimes tense relationship with civil rights lawyers helped shape his attitude toward the law. From the start of his civil rights career, King recognized his debt to the civil rights lawyers. In December 1955, on the eve of the Montgomery bus boycott that first brought him to the nation’s attention, he gave a passionate speech in which he framed boycotters’ cause as building on the long work of civil rights lawyers, particularly the dramatic NAACP victory in Brown the year before. “If we are wrong,” he declared, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Furthermore, civil rights lawyers played a critical role in the eventual triumph of the boycott. The boycott was teetering on the brink of failure, faced with a potentially crippling legal challenge to the carpool system on which the boycotters relied, when news arrived that the Supreme Court had struck down the segregated bus system as unconstitutional.

Yet King also sought to distance himself from the NAACP and its litigation-based tactics. There was an element of inter-organizational rivalry at play here—King’s SCLC competed with the NAACP for attention and funds. There was also an element of a generational divide at play, as King became more closely aligned with the younger element of the movement that was committed to direct-action protest and lashed out against the legalistic tactics favored by the older civil rights activists.

The work of lawyers was important, King stressed, but it must not dominate the energy of the movement. Direct-action protest was both an extension of, and an alternative to, the NAACP’s project of school desegregation litigation, which by the late 1950s had largely stalled in the face of obstructionist legal maneuverings. A new wave of civil rights protest emerged, sparked by the student lunch counter protests of 1960 and motivated in large part by frustration with the slowness of legal reform. To understand what drove African Americans to take to the streets to demand their rights, King explained, “[o]ne must understand the pendulum swing between the elation that arose when the [school desegregation] edict was handed down and the despair that followed the failure to bring it to life.” He critiqued what he saw as an overly idealistic vision of the law that the NAACP lawyers relied upon in making their case for Brown. “When the United States Supreme Court handed down its historic desegregation decision in 1954, many of us, perhaps naively, thought that great and sweeping school integration would ensue.”

Injustice might find expression in unjust laws, but King emphasized that the roots of injustice are deeper. For King, the law by itself was limited in its ability to affect hearts and minds; to truly uproot entrenched patterns of inequality, one must acknowledge the limits of legal reform. African Americans “must not get involved in legalism [and] needless fights in lower courts,” King warned, for that was “exactly what the white man wants the Negro to do. Then he can draw out the fight.” This was the harsh lesson of Brown and massive resistance. “Our job now is implementation. . . . We must move on to mass action . . . in every community in the South, keeping in mind that civil disobedience to local laws is civil obedience to national laws.”

One of King’s contributions to the struggle for racial equality was his passionate skepticism toward the efficacy of legal change when it was unaccompanied by organized social action.

Weekly Roundup – January 16, 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.)

Despite the Court’s silence on same-sex marriage on Monday, pressure from both sides in the debate and a circuit split means that the Court will most likely have to address the issue sooner or later.

The Supreme Court justices shouldn’t attend the State of the Union address, argues Jeff Jacoby of the Boston Globe.

The Court decided Whitfield v. U.S. on Tuesday, upholding a bank robbery law from the John Dillinger era that imposes long prison terms for hostage-taking—even if that means moving someone only a few feet in one room.

The Whitfield v. U.S. decision was also notable for being the first Supreme Court opinion to cite Pride and Prejudice.

Can a sock be considered drug paraphernalia? In Mellouli v. Holder, argued on Wednesday, the Court considered the question.

In Wednesday’s other case, Wellness International Network v. Sharif, the Court weighed the powers of federal bankruptcy judges.

In March, the Supreme Court will hear arguments in a lawsuit that challenges a key provision of the Affordable Care Act, which provides tax credits to consumers purchasing insurance through federal exchanges. Now, states’ attempts to protect these credits for consumers are running up against political and practical obstacles.

Are all signs created equal under the First Amendment? A case coming before the Court will consider the government’s ability to prioritize certain signs over others.

Predicting the Winners in Mellouli v. Holder and Wellness Int’l Network v. Sharif

The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.  I found both of today’s cases difficult to predict.

Mellouli v. Holder asks whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

This is a difficult case to predict. As Figure 1 shows, the total question count favors the Respondent (Solicitor General), who received 5 fewer questions (a modest question differential). But, in this case, I’m predicting a victory for the Petitioner (Mellouli) based on the greater number of Justices with a higher question differential favoring the Petitioner.

Figure 1.


Two Justices appear to be clearly leaning toward opposite sides. Justice Alito asked the Petitioner 15 more questions, which suggests a strong leaning to the Respondent.   On the other hand, Justice Sotomayor asked 11 more questions to the Respondent, which suggests a strong leaning to the Petitioner.

One reason I am going against the total question count is that Justices Alito and Sotomayor asked 17  questions to  the Petitioner and the Respondent, respectively.  Alito’s 17 questions represents 35% of the questions asked to the Petitioner and he only asked 2 questions to the Respondent (whereas Sotomayor asked 6 questions to the Petitioner).  Thus, Justice Alito was effectively responsible for the difference in the total number of questions between the parties–which makes me less confident in making a prediction based on just the total question count.

I have a little more confidence in basing my prediction on the higher question count differentials  by Justice, which favor the Petitioner.  Justices Kennedy and Thomas asked no questions. The other Justices had question differentials that were more modest.

Justices Scalia (+2), Ginsburg (+6), and Breyer (+1) asked more questions to the Petitioner, but the differential was very small for Scalia and Breyer. By contrast, Chief Justice Roberts (+4) and Kagan (+4) asked the Respondent more questions. I have more confidence in basing my prediction on the 4-question differential of Roberts and Kagan, who, combined with Justice Sotomayor, would give 3 Justices leaning toward the Petitioner. On the other side, Justice Alito appears to be solidly leaning to the Respondent, but I am not sure Justice Ginsburg is leaning the same way that her 6-question differential suggests.  Even if she is, that’s 2 Justices versus the 3 Justices who may be leaning the other way.  Of course, 3 Justices does not equal a majority, but I like the trend it suggests.  In sum, I’m predicting a win for the Petitioner (Mellouli).

The second case, Wellness International Network, Limited v. Sharif, asks (1) whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

This is another difficult case to predict, in part because the Solicitor General’s participation as amicus curiae supporting the Petitioner presents an asymmetrical situation with 2 lawyers arguing on one side and 1 lawyer arguing on the other side in the same amount of time. Given the asymmetry, I don’t like simply comparing the number of questions to the Petitioner versus the Respondent. Moreover, simply adding the questions to the Solicitor General to the side that it supported does not seem entirely satisfactory either, given that the Court may want the SG’s view on some of the same questions it asked the side the SG is supporting (thus inflating the question count somewhat for that side).

Another confounding factor in this case is that the most of Justices asked the parties close to the same number of questions if you look at the question count per Justice.  I was more confident in predicting yesterday’s Kellogg Brown case (another asymmetrical case) based on the larger question differentials of some of the Justices and the fact that the Justices asked the Petitioner there fewer questions in 30 minutes than it asked the Respondent in just 20 minutes.

I wish I had a better handle on this case, but the numbers don’t seem to lean that much one way or the other.  I plan on studying more these asymmetrical cases and the results.  This case is a toss-up to me based on the question counts (both total and by individual Justice), but I’ll go with the Petitioner (Wellness International).

Figure 2.


Predicting the Winners in Mach Mining v. EEOC and Kellogg Brown & Root v. Carter

The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.

Mach Mining v. Equal Employment Opportunity Commission asks whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.

The Court was very active in the first case.  It had the highest number of questions this Term, if my memory serves me correct. The Court asked both sides an unusually high number of questions: 65 to the Petitioner and 71 to the Respondent for a total of 136 questions!  (That’s 36 more questions than they asked in the second case.)

I predict a win for the Petitioner (Mach Mining) based on the overall lower question count. The Justices asked the Petitioner 6 fewer questions as shown in Figure 1.

Figure 1.



But this is a very close call—with probably a split among Justices along ideological lines. Four liberal Justices asked the Petitioner more questions, which suggests they are leaning to the EEOC’s position: Justices Ginsburg (+13), Breyer (+3), Sotomayor (+2), and Kagan (+3). Justice Kennedy also asked the Petitioner more questions (+2), which also suggests he may join the liberal Justices on the side of the EEOC—running counter to my prediction. However, the differential in questions is small and he’s been less predictable from the question counts. Two conservative Justices asked the Respondent more questions: Chief Justice Roberts (+24) and Justice Scalia (+5). Justices Alito and Thomas asked no questions.

It’s a close call, but I’ll stick with the side with the lower total question count: the Petitioner (Mach Mining), who argued for the reversal of the Seventh Circuit’s decision rejecting review of the EEOC’s conciliation efforts as a part of a defendant’s affirmative defense in a discrimination lawsuit.

The second case, Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, asks (1) whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “one case- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

As the twin questions presented suggest, the legal issues surrounding this qui tam litigation under the False Claims Act, plus the possible tolling of the statute of limitations provided by the Wartime Suspension Limitations Act, are pretty arcane.

Despite the complexity of the legal issues, I predict a victory for the Petitioner (Kellogg Brown). As shown in Figure 2, the Court asked the Respondent 11 more questions in 20 minutes than it asked the Petitioner in 30 minutes. When considering the Court’s questions to the Solicitor General, who supported the Respondent’s position, the Court asked 28 more questions to the Respondent’s side.   The question disparity suggests a win for the Petitioner and a reversal of the Fourth Circuit’s decision.


Predicting the Winners in Reed v. Gilbert and Oneok v. Learjet

The Supreme Court heard oral argument in two cases on Monday, the first cases for 2015. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method, see my post on last Term’s Aereo case. For all of my predictions this Term, click here.

Reed v. Town of Gilbert, AZ asks whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

This case was somewhat difficult to call, but I predict a victory for the Petitioners (Reed) in their First Amendment challenge to the Town of Gilbert’s differential treatment of religious signs (compared to political or ideological signs). As indicated in Figure 1, the Justices asked the Petitioners 5 fewer questions than the Respondents. The difference in the numbers of questions is not large, but suggests a win for the Petitioners.

Figure 1.


Moreover, looking at the question counts by Justice shows 3 Justices who had large disparities in questions, asking far more questions to the Respondents: Justices Scalia (+11), Ginsburg (+8), and Kagan (+6). By contrast, only 2 Justices asked far more questions to the Petitioners: Chief Justice Roberts (+5) and Justices Kennedy (+9). Justices Breyer, Alito, and Sotomayor did ask 2 more questions to the Petitioners—which cuts somewhat against my prediction—but the difference in questions is so small that I would place less stock in it.

It is also possible that the Court could agree with the Solicitor General’s position and reach the same result as sought by the Petitioners. The Petitioners argued the proper test was a form of strict scrutiny in which the motives of the enactors of the sign code does not matter. The Solicitor General sided with neither party, but argued that the Town’s sign code violated the First Amendment under intermediate scrutiny.

The second case, Oneok, Inc. v. Learjet, Inc., asks whether the Natural Gas Act, which occupies the field as to matters within its scope, preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions.

This case was easier to predict. Each side had 2 advocates (i.e., an amicus curiae on its side). I predict a victory for the Respondents (Learjet, Inc.), which argued for affirming the Ninth Circuit’s decision holding that the state law claims were not preempted. As indicated in Figure 2, the Court asked the Petitioners 6 more questions. Moreover, when the questions to the amicus curiae for each party is included, the Court asked 18 more questions to the Petitioners’ side (47 to 29 questions).

Figure 2.


The question count by Justice makes me a little less confident in my prediction, however. Some of the Justices (Thomas and Alito) didn’t ask any questions. Two Justices asked far more questions to the Petitioners’ side: Justices Ginsburg (+6) and Kagan (+15). One Justice asked far more questions to the Respondents’ side: Justice Scalia (+4). Three Justices asked only 1 more question to a side: Chief Justice Roberts and Justice Sotomayor (both +1 to the Respondents’ side) and Justice Kennedy (+1 to the Petitioners’ side). Justice Breyer asked 2 more questions to the Petitioners’ side. These numbers paint a closer call than the overall question count would predict, but the question counts by individual Justice still favor the Respondents.