All posts by Professor Ed Lee

My Record in Predicting Supreme Court Decisions: Still Perfect

As 2014 draws to a close, the Supreme Court has finished with its announcement of decisions for this year.  The Court issued opinions in 2 cases this week: (i) affirming (8-1) the decision in Heien v. North Carolina that reasonable mistakes about the law by police officers do not violate the Fourth Amendment and (ii) reversing (5-4) the decision in Dart Cherokee Basin Operating Co. v. Owens and holding that a notice of removal does not need evidentiary support, only a plausible allegation that the amount in controversy exceeds the state threshold.

After the oral argument, I found both decisions hard to predict based on the question counts.  But I’m happy to report my predictions in both Heien and Dart Cherokee were right.

So far, I’ve correctly predicted the outcomes in all 4 cases the Supreme Court has decided this Term.  To be honest, I’m surprised by the perfect score.  But I’ll take it because I know there are many other cases this Term I found very difficult to predict.

For the rest of my predictions, click here.

My Perfect Record in Predicting Supreme Court Cases–So Far

On Tuesday, the Supreme Court handed down its first two decisions of the Term.  As SCOTUSblog reports, the Court reversed the 9th Circuit decision regarding overtime pay in Integrity Staffing Solutions v. Busk and affirmed the 8th Circuit’s decision regarding Federal Rule of Evidence 606(b)’s bar on juror-related evidence in Warger v. Shauers.  Both decisions were unanimous.

I correctly predicted the outcome in both cases.  Based on the large disparity of questions between the parties during oral argument, I thought both cases were very easy cases to predict–as you can see here.  Of course, it’s still early in the Term, and I don’t expect  my record in making predictions to remain perfect.  But, for now, I’ll take it!

We’ll be keeping the tally on this page during the Term.

Predicting the Winners in Alabama Legislative Black Caucus v. Alabama and Comptroller v. Wynne

The Supreme Court heard oral argument in two cases on Wednesday, which wrapped up the arguments for November. 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.

Alabama Legislative Black Caucus v. Alabama asks whether Alabama’s legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts.

This case is difficult to predict because of the participation of the Solicitor General supporting neither party.  By my count, the Court asked the Appellants 51 questions, a fairly high number and 14 more than the Appellee, who was asked 37 questions.  The number of questions to the Appellants might be inflated by the fact that 2 attorneys argued (separately) for that side (some Justices seemed to pepper both attorneys with questions). The Court asked the Solicitor General 16 questions during 10 minutes.  Without the SG, the question count points to a victory for the Appellee (Alabama), given the large disparity of questions asked (14 more to the Appellant).

So the question is: will the Court favor the SG’s view (finding error in the district court’s decision upholding Alabama’s redistricting) or Alabama’s view (arguing for affirmance of the district court’s decision)?

The question count does not tell us much to answer this question, given the SG’s 10 minutes versus Alabama’s 30 minutes of questioning.  What is apparent is that the decision is likely to break down along conservative and liberal lines.

Three conservative Justices (Roberts, Scalia, Alito) asked the Appellee (Alabama) fewer questions (8, 9, and 1 fewer, respectively), and three liberal Justices (Ginsburg, Breyer, Kagan) asked the Appellants (Alabama Legislative Black Caucus) fewer questions (2, 2, and 9 fewer, respectively).  Interestingly, Justice Sotomayor, unlike the three aforementioned liberal Justices, asked far more questions (10) to the Appellant, but none to the SG or Appellee.  Meanwhile, Justice Kennedy, unlike the three aforementioned conservative Justices, asked one more question to the Appellee.

I don’t have much confidence predicting the decision based on these numbers.   But, if I had to choose, my guess would be 5-4 decision for affirmance.  I am swayed by the large disparity in the number of questions asked to the two sides, a number that suggests a win for the Appellee (Alabama), which was asked far fewer questions.

Figure 1.

Lee - 11.12.14 Alabama Legislative Black Caucus v Alabama

The second case, Comptroller of the Maryland Treasury v. Wynne, asks whether the United States Constitution prohibits a state from taxing all the income of its residents—wherever earned–by mandating a credit for taxes paid on income earned in other states.

This case is a close call.  The Court asked the Petitioner (Maryland Comptroller) 22 questions, the Solicitor General supporting Petitioner 15 questions, and the Respondent (Wynne) 39 questions.  Thus, by side, the Court asked close to the same number of questions: 37 questions to the Petitioner’s side and 39 questions to the Respondent’s side.

The Justices again appear to be divided along conservative-liberal lines.  Three conservative Justices (Roberts, Scalia, Alito) asked the Respondent fewer questions than the Petitioner (3, 5, and 1 fewer, respectively).  Four liberal Justices (Ginsburg, Breyer, Sotomayor, Kagan) asked the Petitioner fewer questions (10, 5, 3, and 8 fewer, respectively).   Justice Kennedy appears to be the swing vote.  But he asked three questions to both the Petitioner and the Respondent, plus three to the SG.  What also must be taken into account is that prior studies have found the pattern of question count less accurate for Justice Kennedy.

Based on the question count, I see another 5-4 decision.  But which way?   Whichever way Justice Kennedy goes.  If I had to make a guess, I would pick a win for the Respondent (Wynne) based on the surmise that Justice Kennedy ends up going with the other conservative Justices, who seem to be favoring the Respondent’s argument.

Figure 2.

Lee - 11.12.14 Comptroller of Maryland Treasury v Wynne

Predicting the Winners in T-Mobile v. Roswell and M&G Polymers v. Tackett

The Supreme Court heard oral argument in two cases on Monday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument.  I do not evaluate the actual substance of the questions except to determine if there was a question to elicit an answer or response from the advocates. For more about this method, see my post on last Term’s Aereo case.

T-Mobile South, LLC v. City of Roswell asks whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.

This case is difficult to call. By my count, the Court asked the Petitioner (T-Mobile South) 38 questions and the Respondent (City of Roswell) 41 questions.  The Solicitor General supporting neither party was asked 22 questions (10 by Justice Scalia), a fairly high number for the short time allotted to the SG as amicus curiae.

Figure 1.

Lee - 11.10.14 T-Mobile v Roswell

It’s not clear to me from the Court’s order how much time was allotted to the SG, but I’m guessing it was 10 minutes taken out of the Petitioner’s time because the SG at least agreed with the Petitioner that the City of Roswell’s explanation for its decision in the case was inadequate.  If my guess is correct, then the Petitioner receiving fewer questions might be a natural consequence of having fewer minutes allotted for oral argument.

Nonetheless, I’m giving a slight edge to the Petitioner (T-Mobile South).  Without discounting for what may have been more time for oral argument to the Respondent, the Petitioner received fewer questions from four Justices (Scalia, Kennedy, Alito, and Sotamayor). By contrast, three Justices  (Roberts, Ginsburg, and Kagan) asked the Respondent fewer questions.  Justice Breyer asked the same number of questions, and Justice Thomas asked no questions.  Besides the fewer total questions asked of the Petitioner and the greater number of Justices who asked the Petitioner fewer questions, I also found significant Justice Kennedy’s 7 questions to the Respondent (which is a high number for Kennedy, who asked 5 to the other side), as well as Justice Scalia’s 14 questions to the Respondent (11 more than he asked the Petitioner).  Justice Sotomayor also asked the Respondent a large differential of questions (6 more than the Petitioner).  Adding these factors up, I predict a victory for T-Mobile.

The second case, M&G Polymers USA, LLC v. Tackett, asks whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.

This case is easier to predict–finally an easy one!  The Court asked the Petitioner (M&G Polymers) 47 questions and the Respondent (Tackett) 27 questions–a disparity of 20 questions.  I predict a victory for the Respondent.

Figure 2.

Lee - 11.10.14 - MG Polymers v Tackett