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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.

Weekly Roundup – January 9, 2015

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Will an upcoming Supreme Court case lead to massive disruptions for Obamacare?

Persuasive authority? A 1996 law review article on the First Amendment by then-law professor Elena Kagan gets star billing in four of the briefs in the upcoming Supreme Court case, Reed v. Town of Gilbert.

Can the government legally access cell phone tower data in order to determine an individual’s location? A circuit split may mean that the issue is headed to the High Court soon.

The controversial laws regulating Texas abortion clinics came before the 5th Circuit Court of Appeals on Wednesday. If the 5th Circuit upholds the Texas laws, the case will most likely be appealed to the Supreme Court.

ISCOTUS director Chris Schmidt reviews Chief Justice Roberts’ year-end report on the federal judiciary, in which the Chief Justice advocated for a slow, measured approach to questions of technology at the Supreme Court.

Even if it passes, a new House bill that would overturn the ban on cameras in federal courts is unlikely to bring cameras to the Supreme Court.

Today, the Justices hold a private conference to determine whether or not they will rejoin the national debate on same-sex marriage.

Chief Justice Roberts Discusses Technology at the Supreme Court

The Chief Justice began his year-end report on the federal judiciary with a colorful historical excursion:

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics! The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

But “[n]ews of this dawning era was slow to reach the Supreme Court,” Chief Justice Roberts noted. It was not until the new Supreme Court building opened in 1935 that a pneumatic document delivery system came to the Court, where it remained in operation until 1971.

Chief Justice Roberts finds two lessons in this history. First, exciting new technology becomes old and unexciting and then obsolescent. Second, the Court has always been slow to adopt new technology. When it comes to technology, the justices prefer the old and unexciting. “Courts are simply different in important respects when it comes to adopting technology, including information technology,” the Chief explains. As “neutral arbiters of concrete disputes” the courts should only take on new technologies that “advance their primary goal of fairly and efficiently adjudicating cases through the application of law.”

The Supreme Court still works primarily in paper, although Roberts informs us that this will soon be changing, as the Court is hoping to have its own electronic filing system up and running in 2016. “Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website.” The reasons for the slow implementation? Ensuring access is one (“[T]he courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.”). Security is another; the decentralized nature of the federal judiciary yet another.

The Chief wrapped up his report on a predictable note, with a celebration of tradition:

Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Like other centuries-old institutions, courts may have practices that seem archaic and inefficient—and some are. But others rest on traditions that embody intangible wisdom. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.

As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally. Innovations will come and go, but the judiciary will continue to make steady progress in employing new technology to provide litigants with fair and efficient access to the courts.

And a touch of the poetic:

The sculptures that adorn the Supreme Court provide a reminder of that resolve, a resolve that has outlived the Court’s long-gone pneumatic tube system. The often overlooked east pediment, installed on the rear portion of the building, features images of historic lawgivers and other symbolic figures. It is flanked by imagery drawn from a well-known fable: A hare on one side sprints in full extension for the finish line, while a tortoise on the other slowly plods along. Perhaps to remind us of which animal won that famous race, Cass Gilbert placed at the bases of the Court’s exterior lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.

Roberts clearly wrote all this with more than electronic filing on his mind. Most media coverage of the Chief’s year-end report raised the obvious issue that Roberts so carefully avoided mentioning: cameras in the Supreme Court. Chuck Grassley, incoming chair of the Senate Judiciary Committee, responded to the report with a call for allowing cameras at oral argument. Grassley even claimed the mantle of the founding generation: “[T]he courts have yet to embrace the one technology that the founders would likely have advocated for—cameras in the courtroom. The founders intended for trials to be held in front of all people who wished to attend.” “The First Amendment supports the notion that court proceedings be open to the public and, by extension, the news media and broadcast coverage, the same way CSPAN opened Congress to the public,” Grassley wrote. “With the high profile cases coming before the courts, it’s even more important to add greater accountability and public scrutiny to the federal judiciary, a system that includes judges with lifetime tenure.”

Perhaps the Chief’s report can be read as a shift from the categorical “no” response that has long been the justices’ official position on cameras in the Court to something like: “We’ll get there, but not quite yet.”

Weekly Roundup – December 19, 2014

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In response to the recent CIA torture report, Justice Scalia argued against a blanket ban on torture and declared that nothing in the Constitution prohibits torture.

Later this term, the Supreme Court will revisit the issue of life-without-parole sentences for juveniles.

By refusing to review a 9th Circuit decision, the Supreme Court left in place an injunction blocking enforcement of an Arizona law that limits use of a popular abortion drug.

By refusing to review another 9th Circuit decision, the Court rejected Arizona’s refusal to issue driver’s licenses to eligible undocumented immigrants.

The Court may have to settle a dispute between the Great Plains states, as Oklahoma and Nebraska sue Colorado over legalizing marijuana.

In Heien v. North Carolina, the Court held that the police did not violate a suspect’s Fourth Amendment rights when they searched his car subsequent to a stop that was based on their mistaken understanding of the law. What are the implications for our Fourth Amendment protections?

Will this be the Term for same-sex marriage? Robert Barnes of the Washington Post explores the issue.

Robert Kennedy’s Day at the Supreme Court

We used to have a tradition that each U.S. Attorney General would argue at least one case before the Supreme Court. Although he never argued a case in any court, Robert Kennedy was intent on following this tradition. (After appointing his brother as Attorney General, President Kennedy joked: “I can’t see that it’s wrong to give him a little legal experience before he goes out to practice law.”) To break tradition, Kennedy felt, would give more fuel to those who still questioned his qualifications. A solid performance at the Supreme Court might even quiet some of this criticism.

On January 17, 1963, Attorney General Kennedy made his sole appearance before the Court. He argued on behalf of the government in Gray v. Sanders, a constitutional challenge to Georgia’s county-based primary voting system, which strongly advantaged rural candidates over urban ones. The case was one of the Warren Court’s reapportionment line of decisions, a stepping stone between the more famous Baker v. Carr decision of the previous term (recognizing federal court jurisdiction in reapportionment challenges) and the Reynolds v. Sims decision (establishing the one person, one vote standard) that would come the next term. The Kennedy Administration had come out in support of judicial intervention to remedy the extreme imbalances of voting districts in states where legislatures refused to redraw voting district lines in response to demographic changes, resulting in the dilution of the voting power of citizens in growing urban areas. (For an excellent account of the reapportionment cases, see J. Douglas Smith’s new book, On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought ‘One Person, One Vote’ to the United States.)

On the day of oral argument, the Kennedy clan showed up in force at the Supreme Court. The Attorney General’s wife, Ethel, was there, along with his younger brother, Edward Kennedy, who had recently been sworn in as a U.S. Senator. Also there was the Attorney General’s sister in law, First Lady Jackie Kennedy. “Kennedys Outnumber the Justices” read one headline the following day.

When he rose to speak, Kennedy looked “like a nervous and uncomfortable young bridegroom,” reported the Washington Post. The justices respectfully listened to the Attorney General, allowing him to speak uninterrupted for some ten minutes as he read from a script prepared by Solicitor General Archibald Cox. Once he got going, his initial nervousness dissipated and he gave a generally solid presentation of his argument.

Kennedy’s presentation used one personalized reference (at 105:07) which got a laugh from the audience: “We used to have, and I repeat used to have, a saying in my City of Boston which was vote early, and vote often. If you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.”

When pulled from his script with some gentle questioning, Kennedy made his Solicitor General sitting in the gallery squirm a bit when he expressed support for a revised legal standard that went beyond his prepared talking points. Cox advocated a position under which some but not necessarily all inequality in voting districts would be held unconstitutional. Kennedy seemed willing to go further (at 109:58 – 110:45) supporting the “one man, one vote” standard under which any population inequality would be deemed unconstitutional.

In concluding his presentation to the Court, apparently returning to his prepared text, Kennedy gave eloquent voice to the basic principle at issue:

[T]he great miracle of the Constitution is that we’ve been able to deal with the problems of the 20th Century as well as the problems of the 18th Century. These are the great problems that are facing the United States at the present time. And this kind of invidious practice that exists now and has existed before and the Georgia County Unit System is a—strikes at the very heart of the United States. If we can give equal protection to those who feel that they’ve been deprived of their economic rights, certainly we can give equal protection to those who have been deprived of the most basic right of all, which is the right to vote. If we cannot protect them, then the whole fabric of American the system, then our way of life is irreparably damaged.

(Audio here, at 126:17 – 126:59)

In the end, Justice Douglas, writing for an eight-justice majority, basically accepted the Attorney General’s position:

Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment…. The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.

The approximately 25 minute clip of Kennedy’s oral argument can be found here (at 99:35 – 127:00).

The Justices, Their Papers, and the Claims of History

Why do we care about what goes on behind closed doors at the Supreme Court? Do the justices have some sort of responsibility to ensure that the American people learn, at some point, the “inside” story of the Court? A recent article in the New Yorker by Jill Lepore on the theft of some of Justice Frankfurter’s papers, along with a provocative response by Michael Dorf, raise yet again these perennial questions.

We can all agree that there is something of value in getting behind the scenes at the Supreme Court. Journalists and historians delve into the available records and resources—correspondence, unpublished opinions, conference notes, interviews with justices and clerks—to try to recreate what happened. As a result of these investigative forays, today we have extensive knowledge of what was happening within the Court as the justices deliberated over many of the Court’s most significant decisions. Most recently, Joan Biskupic’s book on Justice Sotomayor made news with her revelation that Justice Sotomayor had written a sharp dissent in an affirmative action case that was never published when some of the justices, apparently influenced by Sotomayor’s dissent, switched sides.

But the question remains: what exactly is the value of these revelations? Historians and reporters don’t typically concern themselves with this question. These are important events, and their job is to find out as much about them as possible. Thus we lament justices who restrict access to their papers or, worse, justices who destroy their papers. But the question becomes more difficult when we shift perspective from that of the historian or journalist to that of the Supreme Court justice. Do the justices have a special responsibility to preserve the records pertaining to their work? Should we have laws that require them to do so, as we do in other areas of government? Professor Dorf raises the legitimate point that in order to determine whether this responsibility really exists and how far it should go requires an assessment of the value of these behind-the-scenes stories.

I agree with Dorf that this issue is harder than we might assume. To simply claim that the justices have a responsibility to “history” feels intuitively gratifying, but it does not resolve the issue. Yet I think that Dorf provides too narrow an assessment of how we might measure the value of materials relating to the inner workings of the Court.

Dorf concludes that the value of increased knowledge of the internal workings of the Court “is more in the nature of a claim of art than it is about making democracy function or anything so practical.” The papers of the justices, he writes, only rarely “contain documents that are relevant to some current controversy.”

We don’t need to know what Jackson said to Frankfurter or vice-versa to learn any useful lessons about the cases they decided or about interpersonal relations more broadly. Our interest (for those of us who have an interest in such matters) stems entirely from the fact that we find the matters inherently interesting….

We can understand the broad picture of the work of the Supreme Court and its relation to other institutions without access to the Justices’ papers. But for those who find history interesting, the minutiae of the decisionmaking process and even the behind-the-scenes gossip have inherent value. We can appreciate history in the way we appreciate art—for its own sake.

This goes too far, I believe. The supposed “lessons” of history to present-day dilemmas are invariably overstated, but there is value in knowledge about the ways in which the fundamental institutions of our society function. When it comes to the U.S. Supreme Court, its written opinions give us only a partial window into how it operates. Accounts of the Court’s decisionmaking process provide additional insight. Details about how the Court actually functioned at some past point, about how the justices came to their most important decisions, is surely of some considerable value in a constitutional democracy. It deepens our understanding of what the Court did in the past, what it does today, and what it might do tomorrow.

Consider, for example, where our understanding of the Court would be without knowing that prior to the 1940s the norm within the Court was for the justices to suppress dissents in all but the most important of cases. The justices believed that in most cases the value of an individual dissent did not outweigh the value of presenting an image of a unified Court to the public. The fact that the high rates of consensus in the Court during much of its history was a product of a norm and not actual consensus tells us something vitally important about the Court and the issues it confronted. It changes our understanding of some of the unanimous opinions that came in this period, and it changes out understanding of those relatively rare dissenting opinions of the period. It also changes our understanding of the Court we have had since the 1940s, when dissenting opinions have become commonplace.

Or consider our quite thorough understanding of what happened behind the scenes in the Brown decision. Behind the united front of Chief Justice Warren’s unanimous opinion were years of false starts, cajoling, and compromise. Although I would not look to the justices’ deliberations to learn something about the problem of racial segregation in schools today, I do believe that this seminal moment reveals something about how a fundamentally conservative institution could, for a time, stand at the vanguard of one of the nation’s most important social revolutions. Bruce Ackerman’s most recent book draws on the justices’ papers to identify several moments when the Warren Court almost took some major doctrinal leap in the name of the civil rights revolution, only to pull back at the last minute for one reason or another. All of this surely has some value for those who today are considering whether the Supreme Court might advance their cause of choice.

None of this resolves the very difficult question of how far the justices’ responsibility to history, legal or otherwise, goes when it comes to preserving and making accessible their papers. My goal here is simply to offer some thoughts as to how this issue should be approached. Dorf is surely right to argue that “history’s” claim to the details of the justices’ decisionmaking process cannot serve as a blanket call for transparency. But neither can this claim be reduced to the level of Supreme Court voyeurism. When historians and journalists recreate the inner workings of the Supreme Court, they are serving the legitimate claim of a democratic citizenry for knowledge about this critically important institution.

Weekly Roundup – December 12, 2014

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.)

Why the Supreme Court might agree to hear a same-sex marriage case after all.

In January, the Court will hear a case concerning the constitutionality of a Massachusetts ordinance banning “aggressive begging.”

The Court’s decision not to intervene in BP’s gulf spill legal war could increase the company’s liability to billions more than anticipated.

The Court ruled on Tuesday that Amazon does not have to pay warehouse workers for time spent waiting to go through security screenings.

Bobby Chen—who, without a lawyer, persuaded the Court to hear his case—has gone missing.

The Justices appeared split along ideological lines in Wednesday’s U.S. v. Wong oral argument.

Linda Greenhouse reflects on the Court and rights for pregnant workers.

An in-depth Reuters report looks at the small, elite group of lawyers who wield outsize influence at the Supreme Court.

Predicting the Winners in US v. Wong and US v. June

The Supreme Court heard oral argument in two cases on Wednesday, both involving whether equitable tolling applies to claims against the federal government under the Federal Tort Claims Act. 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.

U.S. v. Wong asks whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

The Court asked the Respondent (Wong) 28 questions, 11 fewer than asked of the Petitioner (Solicitor General). The question disparity suggests a win for the Respondent, who argued for affirming the Ninth Circuit’s decision that the statute of limitations under the Federal Tort Claims Act is not jurisdictional and equitable tolling may be applied to it.

However, the picture gets more complicated looking at the question count per Justice. There’s a possible split along ideological lines. Chief Justice Robert and Justice Kennedy asked 8 and 4 questions to the Respondent (Wong), respectively, but no question to the Petitioner (Solicitor General). Justice Alito asked one more question to the Respondent. On the other hand, Justices Ginsburg and Kagan asked 7 and 10 more questions to the Petitioner, respectively. Justices Breyer and Sotomayor each asked 2 more questions to the Petitioner. Defying the ideological pattern, Justice Scalia asked 3 more questions to the Petitioner. Although 5 Justices asked the Petitioner more questions (suggesting a win for the Respondent), it is not clear whether Justice Scalia’s questions indicate a leaning to the Respondent’s side. In U.S. v. June, the companion case argued afterwards (see below), Justice Scalia asked more questions to the Respondent’s side.

The overall and individual question counts suggest a close case, probably a 5-4 decision. Justice Kennedy may be the swing vote, and his questions might suggest a leaning to the Petitioner (Solicitor General). However, I will stick with the overall question count and predict a win for the Respondent (Wong).

Figure 1.

Lee - 12.10.14 US v Wong

The second case, U.S. v. June, asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

This question count again favored the Respondent. The Court asked the Respondent (June) 17 questions, 9 fewer than asked of the Petitioner (Solicitor General). The overall question disparity suggests a win for the Respondent, who argued for affirming the Ninth Circuit’s decision.

However, just as in U.S. v. Wong, the picture gets more complicated looking at the question count per Justice. Chief Justice Roberts again asked the Respondent more questions (+4). Justices Ginsburg, Breyer, and Kagan again asked the Petitioner more questions (+4, +5, +4, respectively). Several Justices asked more questions to the other side compared to the side they asked more questions in Wong: Justices Scalia and Sotomayor asked the Respondent more questions (+2 and +1, respectively); and Justice Kennedy asked the Petitioner more questions (+1). Justices Thomas and Alito asked no questions. The pattern still suggests a possible ideological split. As in Wong, I will stick with the overall question count and predict a win for the Respondent (June).

Figure 2.


Predicting the Winners in Gelboim v. Bank of America and ADOR v. CSX

The Supreme Court heard oral argument in two fairly technical cases on Tuesday, one involving the appeal of a dismissal of an action that has been consolidated with other actions that are still ongoing and the other involving the the Railroad Revitalization and Regulatory Reform Act of 1976.  Indeed, this week, the Court is knee deep in some very technical and complex areas of law. 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.

The first case, Gelboim v. Bank of America Corporation, asks whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.


This case is easy to predict.  As Figure 1 shows, the Court asked the Petitioner (Gelboim) 59 questions, 19 more than asked of the Respondent (Bank of America). The large disparity in questions indicates a victory for the Respondent, which argued that 28 U.S.C. § 1291 “bars an immediate appeal as of right when one constituent in a consolidated district-court action [in a Multi-District Litigation] is dismissed from ongoing pretrial proceedings”as the Second Circuit held below.

The second case, Alabama Department of Revenue v. CSX Transportation, Inc., asks (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state’s tax scheme rather than focusing solely on the challenged tax provision.

This case is more difficult to predict, given the two questions presented as well as the Solicitor General’s third position supporting neither party.  The SG agreed with the Respondent that the proper comparison to determine discrimination against a rail carrier is compared to other competitors, but agreed with the Petitioner that “a state can justify a challenged tax’s differential treatment of railroads by pointing to an alternative and comparable tax that applies to the comparison class but not to railroads.”

If the SG were not involved, then I’d give the win to the Respondent (CSX), which was asked 9 fewer questions than the Petitioner, as shown by Figure 2 below.  Since the SG agreed with the Respondent on the comparison issue, I predict a victory for the Respondent on that issue. But what about the justification issue—whose view will prevail? It’s too hard to say from just the number of questions, especially given that the Solicitor General received only 10 minutes as an amicus. But if I had to make a prediction on the second issue, I’ll go with the SG.  So it’s a partial win for CSX.