Sorry, it’s taken me awhile to analyze the Michigan v. EPA, which the Supreme Court heard back on March 25.  The case asks whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.  I predict a 5-4 decision in favor of the Petitioners.

Figure 1.

As Figure 1 shows, the total question count favors slightly the Petitioners (Michigan), whose side received 5 fewer questions than the Respondents (EPA/SG and Industry Respondents).

The question count by Justice suggests a split along ideological lines. Four conservative Justices asked more questions to the Respondent’s (EPA) side: Roberts (+16), Scalia (+4), Kennedy (+1), and Alito (-8).  Four liberal Justices asked the Petitioners (Michigan) more questions: Ginsburg (+2), Breyer (+3), Sotomayor (+7), and Kagan (+9).  The differential for Justice Kennedy is just one question, so he appears to be the swing vote again!  Based on these numbers, I will go with a victory for the Petitioners.

The Supreme Court heard oral argument on Wednesday in Horne v. Department of Agriculture, which asks (1) whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

I predict that the Court will split in a 5-4 decision along ideological lines with the key vote being–no surprise–Justice Kennedy.

As Figure 1 indicates, the total question count favors the Petitioner (Horne), who received 16 fewer questions than Respondent (SG).  However, that number is somewhat deceptive because Justice Scalia alone was effectively responsible for the disparity in questions.  Justice Scalia asked the SG 27 questions, an unusually high number of questions and 23 more than he asked the Petitioner.

The question count by individual Justice suggests an ideological split.  Five Justices asked the Petitioner more questions, which suggests a leaning to the Respondent (SG): Kennedy (+1), Ginsburg (+6), Breyer (+5), Sotomayor (+10), and Kagan (+2).  But notice that Justice Kennedy asked the Petitioner only one more question than he asked the SG–that’s a virtual tie, given that one of Kennedy’s question to Petitioner was asked during rebuttal simply to have the Petitioner finish his remaining points.

Three Justices asked the SG more questions, which suggests a leaning to the Petitioner: Roberts (+11), Scalia (+23), and Alito (+6).

So how will Justice Kennedy vote?  It’s a toss-up, but I will go with a win for the Petitioner with a 5-Justice conservative majority.

The Supreme Court heard oral argument in one case on Tuesday, McFadden v. U.S., which asks whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar” to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.  I predict a victory for the Petitioner.

As Figure 1 indicates, the total question count slightly favors the Petitioner (McFadden). The Court asked the Respondent (Solicitor General) 6 more questions.  Likewise, the count by individual Justice slightly favors the Respondent. Five Justices asked the SG more questions: Roberts (+5), Ginsburg (+2), Breyer (+9), Alito (+4), and Sotomayor (+2).  Three Justices asked the Petitioner more questions: Scalia (+9), Kennedy (+4), and Kagan (+3).

Although the differences are slight, I’ll go with the Petitioner for the win.

The Supreme Court heard one oral argument on Monday in Johnson v. United States, which asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.  This is a very difficult case to predict.

As Figure 1 indicates, the total question count is very close: The Court asked the Petitioner 58 questions and the Respondent 57 questions–a virtual tie.

The question count by Justice is also very close.  Four Justices asked the Petitioner (Johnson) more questions, which suggests a leaning to the Solicitor General: Justices Kennedy (+8), Ginsburg (+1), Alito (+13), and Kagan (+4).  Three Justices asked the Solicitor General more questions, which suggests a leaning to the Petitioner (Johnson): Chief Justice Roberts (+9), Justices Scalia (+14), and Breyer (+1).  Justices Sotomayor (cannot tell if she was recused) and Thomas asked no questions.

This is a toss-up.  But I’m going with a win for the Solicitor General, given the slight edge in Justices.

The Supreme Court heard two bankruptcy cases on Wednesday. The first case, Harris v. Viegelahn, asks whether, when a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, undistributed funds held by the Chapter 13 trustee are refunded to the debtor (as the Third Circuit held in In re Michael), or distributed to creditors (as the Fifth Circuit held below).

Figure 1.

As Figure 1 shows, the total question count favors the Respondent (Viegelahn), who received 12 fewer questions than the Petitioner (Harris).  The question count by Justice also favors the Respondent. Four Justices asked the Respondent fewer questions (Roberts, Scalia, Kennedy, Ginsburg).  Only two Justices asked the Petitioner fewer questions (Sotomayor and Kagan).  Justice Breyer asked each side the same number of questions.  Justices Alito and Thomas asked no questions.  Based on the question counts, I predict a victory for the Respondent (Viegelahn).

The second case, Bullard v. Blue HIlls Bank, asks whether an order denying confirmation of a bankruptcy plan is appealable.

Figure 2.

As Figure 2 shows, the total question count favors the Respondent (Blue Hills Bank), which received 25 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Petitioner’s side had two attorneys arguing (which might inflate the question count somewhat), even the 12 question differential between just the Petitioner and the Respondent is significant (especially considering that Petitioner had 10 minutes less for oral argument).   The question count by Justice also favors the Respondent.  Five Justices asked the Respondent fewer questions (Roberts, Kennedy, Ginsburg, Breyer, Sotomayor).  Based on these numbers, I predict a victory for the Respondent (Blue Hills Bank).