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Supreme Court Justices and Their Papers

The latest issue of the New Yorker has an article by Harvard historian Jill Lepore exploring the theft of thousands of documents from Justice Felix Frankfurter’s papers at the Library of Congress in the early 1970s. In the course of detailing the unsolved mystery of Frankfurter’s missing papers, Lepore provides a brief history of controversies relating to Supreme Court justices and their papers. She also criticizes the justices for their haphazard and excessively secretive practices of preserving their papers and making them available to researchers.

In this post I discuss Lepore’s history of the justices and their papers. In a subsequent post I will consider her critique of the justices’ handling of their papers.

Some of the stories contained in Lepore’s entertaining historical tour of controversies involving the justices’ papers are well known. Most famously, there was the controversy surrounding a memorandum the young William Rehnquist wrote in 1952 while clerking for Justice Jackson. The Court was considering a series of challenges to school segregation that would eventually lead to the Brown decision in 1954. Rehnquist wrote a memorandum for Justice Jackson in which he argued that Plessy v. Ferguson was rightly decided and should be affirmed. When this document surfaced in 1971, it almost derailed Rehnquist’s appointment to the Supreme Court. Rehnquist offered the improbable explanation that he was only describing Jackson’s position. The memorandum was again an issue when Rehnquist was elevated to the Chief Justiceship in 1986.

Other episodes Lepore recounts are probably less familiar. There was Justice Frankfurter going to the University of Louisville, where Justice Louis D. Brandeis had left his papers, and demanding (and receiving) his correspondence with Justice Brandeis. There was Justice Brennan being reprimanded by Chief Justice Rehnquist after sharing one of his case files with a scholar. There were the efforts of Frankfurter’s loyal allies to protect the justice’s legacy by blocking access to his papers while searching for the right person to write the definitive Frankfurter biography (which, Lepore notes, is still to be written).

And then there was “Operation Frustrate the Historians.” Although Lepore only briefly mentions this nugget of Court history, it is, for the Supreme Court historian, a heartbreaking story, and worth a closer look.

Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was deeply protective of his personal privacy and was a skeptic of academics. His commitment to keeping the prying eyes of the public away from his personal life was, in part, the product of the rocky road he traveled to the Court. Soon after the Senate confirmed his appointment to the Court, the press picked up the story that early in his political life in Alabama, Black had been a member of the Ku Klux Klan. When the resulting public outcry appeared to imperil Black’s place on the Court, he decided to take his case directly to the public through a nationally broadcast radio address. The address—in which he explained that he had been, but was no longer, a member of the Klan, and that he was not a bigot—seemed to quell the controversy. Once seated on the Court, the ex-Senator embraced the more reclusive life of a justice, avoiding the press whenever possible. “I am inclined to think that public officials can be better judged by their public utterances than by their private correspondence, memoranda, and diaries,” he once explained.

Justice Black’s skepticism toward academia was a product of his biography. He lacked the elite academic credentials of many of his colleagues on the Court; his passion for learning was largely autodidactic, and his professed faith in constitutional text and history was generally met with criticism from legal academics.

Black’s commitment to protecting his privacy and his distrust of academics were in full evidence when, in the late 1960s, he refused requests for help from a political scientist named S. Sydney Ulmer. Ulmer was writing an article on the Court’s deliberations in Brown. In a series of correspondence with Ulmer, Black insisted that the inner-workings of the Court should not be the subject of scholarly inquiry. Ulmer sent Black an advance copy of his article, in which he claimed (wrongly) that Black was initially opposed to the Court’s decision in Brown, based on his readings of conference notes by Justice Harold Burton. Black assured the political scientist that he was mistaken, that under no circumstances would he have voted to uphold segregation. But he refused to explain himself any further.

This incident led Black, long a skeptic of scholarly prying into the inner-workings of the Court, to destroy most of his Court papers. It was, his wife explained, “the final nail in the coffin.” As Lepore writes: “‘Operation Frustrate the Historians,’ Hugo Black’s children called it, as the sky filled with ashes the day they made their bonfire.”

Mississippi Burning at the Supreme Court

On Monday, President Obama awarded Medals of Freedom to James Chaney, Andrew Goodman, and Michael Schwerner. This year marks the fiftieth anniversary of their deaths. Early in the summer of 1964, the three men were working with the Mississippi voter registration drive known as “Freedom Summer.” Local police arrested them for a supposed traffic violation and then released them in the middle of the night into the hands of the Ku Klux Klan. The lynch mob beat them, shot them, and buried them beneath an earthen dam. The FBI’s eventual discovery of their bodies put to rest claims of white Mississippians that the civil rights workers’ disappearance was some sort of publicity stunt. The search for their bodies lasted through much of the summer and became a national news story, fueled in large part by the fact that Goodman and Schwerner were white northerners. Their murders pushed public opinion further behind the cause of the civil rights struggle, helping to lay the groundwork for the Voting Rights Act of 1965.

The tragic history of Chaney, Goodman, and Schwerner—which would be popularized in the 1988 movie Mississippi Burning—included a major Supreme Court decision. United States v. Price involved the appeal of a federal district court opinion that dismissed the indictments of eighteen members of the Ku Klux Klan, including three government officials (Cecil Price was a deputy sheriff), for the federal crime of conspiring to deprive individuals of their constitutional rights. The Justices heard oral arguments in November 1965. Arguing the case for the government was none other than Thurgood Marshall, who had recently been appointed Solicitor General.

On opening his oral argument, Marshall summarized the chilling facts of the case: “It is alleged that three of the defendants, namely the sheriff of Neshoba County, his deputy, and a local policeman, used their official powers to release the victims who were in state custody, [and] turned them over to a lynch mob, which one of the officers had shielded by his presence, with the view that they’d be summarily punished without benefit of trial and as alleged in defiance of the Due Process Clause of the Fourteenth Amendment.”

Listen to the Oyez audio clip of the rest of the opening of Marshall’s oral argument here.

(Note: Marshall was interrupted by questions from the bench only two times during his entire presentation. This was an indication that the justices were basically in agreement with Marshall’s reading of the relevant federal law—the justices peppered his opposing counsel with skeptical questions—and a reflection of the norms at oral argument during the Warren Court, which was quite different from today’s more justice-centered oral arguments.)

The Supreme Court, in an opinion by Justice Abe Fortas, unanimously reversed the district court. The subsequent trial resulted in the conviction of seven men for conspiracy to kill Schwerner, Chaney, and Goodman.

Decades later Mississippi reopened its investigation into the three killings. In 2005 a jury found Edgar Ray Killen guilty of manslaughter. Killen is currently serving his sentence in state prison.

Weekly Roundup – November 21, 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.)

Supreme Court Justices don’t take the law seriously enough to deserve the title of “judges,” argues Eric Segall at Slate.

Last weekend Justice Alito aired his frustrations with press coverage of the Court. ISCOTUS director Chris Schmidt considers the long and colorful history of the strained relationship between the Court and the press.

Mortgages and bankruptcy protection head to the Court with two Bank of America appeals.

Does a same-sex marriage appeal in Michigan have what it takes to make it all the way to the Supreme Court?

The Michigan case is one of a group of four pending petitions on the issue of same-sex marriage before the Court.

Cracks in the façade? The apparent agreement among the justices on the Court’s actions thus far this term in the same-sex marriage cases looks like it’s starting to break down, as Justices Thomas and Scalia voice some concerns.

The Court allows same-sex marriages to proceed in South Carolina.

Lyle Denniston discusses the Justices’ “rising unease” with “the race question”—and what this may hold for the future.

Chris Schmidt discusses highlights from the oral argument in last week’s Alabama redistricting case, now available on Oyez.

On Sweet Spots, Quotas, and Tons of Bricks—Listening to Oral Argument in the Alabama Redistricting Case

Audio from the fascinating oral argument in last week’s case involving a challenge to Alabama’s redistricting is now available on Oyez. Although Alabama Legislative Black Caucus v. Alabama revolves around some particularly tangled legal twists and turns, one can get a pretty good grasp of the key issues with a brief dip into the oral argument.

Here are the basics: The case involves a challenge to a redistricting plan Alabama’s Republican-controlled legislature passed in 2012. In response to the demographic shifts revealed by the 2010 census, Alabama redrew its voting district lines to more evenly balance the population of each district, as required by the Supreme Court’s one person-one vote requirement. (The Court first defined this requirement in the seminal 1964 case of Reynolds v. Sims, which also happened to involve districting practices in Alabama.) In modifying district lines, Alabama replicated, with considerable precision, the percentages of African American voters in districts with African American majorities from the last redistricting. These districts had been designed, through past districting plans, to ensure that blacks have the ability to elect representatives of their choice. The architects of Alabama’s redistricting plan claim that the Voting Rights Act of 1965 required them to take this approach of preserving black voting percentages.

Challengers to Alabama’s latest redistricting effort claim that this approach relies on race above all other factors in drawing district lines, which the Court has held to be unconstitutional. Contrary to Alabama’s assertions, they argue that the careful maintenance of black voting percentages was not required by the Voting Rights Act. They warn that as a result of this unconstitutional redistricting plan, minority voters were “packed” into certain districts, their overall voting power diluted, and the possibility of cross-racial political coalitions diminished.

Here are some of the highlights from a lively oral argument at the Supreme Court:

(When the running transcript is added to the Oyez audio, I will add links to audio clips of the relevant sections of the oral argument. For now, I just identify where these sections can be found.)

The Q Word

Richard Pildes, attorney for the challengers to the districting plan,  opened his argument by attacking Alabama as dealing in “rigid racial quotas.” In its cases involving affirmative action, the Court has long held that government-imposed racial quotas are unconstitutional, even when they are intended to benefit racial minorities. By framing the districting issue as an effort to impose quotas, Pildes was attempting to draw on the concern the Court has shown about precise racial percentages in its affirmative action jurisprudence.

Justice Alito called Pildes out on his choice of terminology. He noted that the attorney “criticiz[ed] Alabama for supposedly imposing quotas. But listening to your argument, it sounds to me that you are just as interested in quotas. You’re just interested in lower quotas.” Pildes backed down a bit, noting that “we don’t have to use the word,” that “there’s a lot of rhetorical and inflammatory power in the word,” and explaining that he really had meant to use the term “racial targets.” (This last claim is a touch curious. After all, not only did he use the word in the first sentence of his argument, but he then used it again a few sentences later.) Pildes stayed away from the word after this exchange.

Alito’s chastisement of Pildes for his use of the word “quota” can be found at 8:22 in the audio.

Searching for the Sweet Spot

The Scylla and Charybdis of the case were the requirements of the Voting Rights Act and those of the Equal Protection Clause. Alabama argued that their primary concern in preserving the racial percentages of minority-majority districts from the last redistricting stemmed from its fear of falling out of compliance with the requirements of Section 5 of the Voting Rights Act, which require states to protect the ability of minority populations to elect representatives of their own choosing. Yet by taking race into account in this way, Alabama risks running afoul of the Supreme Court’s equal protection doctrine, which has held that race may not be the predominant factor in redistricting.

Chief Justice Roberts in particular seemed concerned that these potentially conflicting legal constraints put Alabama in something of bind. The state had to “hit this sweet spot between … two extremes.” On the one hand, they have to “move enough [voters] so that the minorities have an opportunity to elect candidates of their choice”; on the other hand, they cannot move “too many because that would be [unconstitutional racial] packing.” The challengers to the districting plan argue that Alabama’s fear of violating the Voting Rights Act was based on a misreading of the law, that in fact the Justice Department did not block redistricting plans simply because the percentages of minority voters in minority-majority districts dipped. The Chief Justice was unconvinced: “I think that if Alabama had reduced the number of minority voters in majority-­minority districts in any significant way, the Attorney General would have come down on them like a ton of bricks.”

Chief Justice Roberts discussing the “sweet spot” problem can be found beginning at 1:00.

An “Evil Day” on the Horizon?

Finally, it is worth mentioning a subtext that lurked through much of the oral argument, hinting at a potential future legal transformation of epic proportions. This is, simply put, the possibility that the heart of the Voting Rights Act might itself be vulnerable to constitutional challenge. The current Court of course has already started the project of significantly cutting back on the Voting Rights Act through its 2013 decision in the Shelby County case. But there were hints of an even more fundamental constitutional challenge to the Voting Rights Act, one that would find the essential race-conscious provisions of the law—such as protecting majority-minority voting districts—as themselves violations of the equal protection principles.

Not surprisingly, it was Justice Scalia who seemed most interested in going down this path. It is much the same path he called for in his concurrence in Ricci v. DeStefano, where he noted that the tension between his reading of the constitutional equal protection requirement and the race-conscious requirements of Title VII of the Civil Rights Act of 1964 may require resolution in the near future. By avoiding directly tackling this issue, the Court was just putting off “the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” Justice Scalia’s line of questioning in Alabama Legislative Black Caucus indicates that perhaps he hopes for a similar “evil” day for the Voting Rights Act. “Don’t you have to use race to comply with Section 5 [of the Voting Rights Act]?” he asked Alabama’s lawyer. “Is there any way to comply with Section 5 without using race?” The answer, of course, was no. The implications of this fact remain to be seen. This particular case would seem an awkward vehicle for such a frontal assault on the Voting Rights Act. But it may prove to be a stepping stone in this direction.

Justice Scalia’s comments can be found at 60:16 in the audio on Oyez.

The Supreme Court and the Press—When the Justices Strike Back

Justice Samuel Alito recently aired his frustrations with press coverage of the Supreme Court. Speaking at the New York Historical Society this past weekend, he conceded that the reporters that “cover us full time … are very knowledgeable,” and that “their news stories about oral arguments and decisions … are pretty good.” But he complained about “people who are not very knowledgeable” trying to write about the Court. He seemed particularly annoyed by Dahlia Lithwick’s recent story in the New Republic, which portrayed the Court as impressively credentialed but “worryingly cloistered.” In Alito’s characterization, the article “complain[ed] about the current membership of the Court, because unlike in past days, according to this columnist, we don’t have a representation of drunks, philanderers, and a few, you know, a few other n’er do wells.”

In lashing out at the press, Justice Alito joins a venerable Supreme Court tradition (which I have described in more detail here). Justices have a long history of complaining about the way the press covers the Court.

For example, in 1979, Justice Lewis Powell became so exercised about what he called a “sophomoric” Newsweek article (it was titled “A Rudderless Court”) that not only did he publicly dismiss the article as “nonsense,” but, along with Justices Rehnquist and White, he conspired to leak information to reporters at Time on the condition that they portray the Justices as supportive of Chief Justice Burger.

Justice Scalia has been notoriously scathing in his criticism of press coverage of the Court. According to the Justice, the liberal bias of the mainstream press means that “much of the press is hostile to my message.” Law, he declared in a 1990 speech, “is a specialized field, fully comprehensible only to the expert,” and hence the general news media can never adequately capture the work of the Court. Scalia never gave this speech again because of the sharply negative media reaction it received. “The press is very thin-skinned,” he explained to Joan Biskupic in a 2007 interview that went into her biography of Scalia. “They can dish it out but they can’t take it.”

“Look it, do not believe anything you read about the internal workings of the Supreme Court,” Scalia explained in a more recent interview. “It is either a lie because the press knows we won’t respond—they can say whatever they like and we won’t respond—or else it’s based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief.”

Justice William Brennan gave an unusually blunt defense of the Court in a 1979 address in which he responded to a flood of press criticism of a recent Court ruling allowing judges to order certain pre-trial proceedings closed to press and public. He accused the press of “misapprehending the fundamental issues at stake” in these cases, and therefore of “fail[ing] in its important task of illuminating these issues for the Court and the public.” He went on to list specific newspapers, even particular journalists. The press, he concluded, “can be of assistance only if bitterness does not cloud its vision, nor self-righteousness its judgment.” The Washington Post ran an editorial titled, “Justice Brennan Tells Off the Press.”

So, in short, as entertaining as this new spat between Justice Alito and the press may be, it is just the latest installment in a long-running dramedy.

Weekly Roundup – November 14, 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.)

Last Friday, the Court agreed to take on a new challenge to President Obama’s health law in King v. Burwell. But does this mean that the Affordable Care Act is doomed?

The Court expresses puzzlement over its involvement in M&G Polymers v. Tackett.

On Veterans Day, Wall Street Journal SCOTUS correspondent Jess Bravin sent out a thank you to the justices who have served in our armed forces—Justices Kennedy, Breyer, Alito, and Stevens—and recognized Justice Ginsburg, who was an army wife at Fort Sill, Oklahoma.

The Court allows same-sex marriages to proceed in Kansas, after Justice Sotomayor had issued a temporary stay on Monday. So will the Court finally settle this question?

The justices examine the issue of “double taxation” in Comptroller of the Maryland Treasury v. Wynne.

ISCOTUS director Chris Schmidt has a modest proposal for the Court—allow live video or audio broadcasts of opinion announcements.

Ed Lee predicts the winners in this week’s cases by looking at the number of questions asked during oral argument.

The latest installment of the National Constitution Center’s stellar podcast series discusses the Supreme Court and racial gerrymandering.

Has the Supreme Court gotten “too smart for our own good”?  Dahlia Lithwick on a “cloistered” Court.

A Modest Proposal

Supreme Court justices love to talk about the importance of public engagement. The American people, they insist, need to understand what the Court does and why. They write books and articles, deliver lectures, and give interviews, often with the express intention of informing the public about the Court’s work. Yet when it comes to actually reforming the way the Court operates to better serve these goals, the members of the Supreme Court sing a different tune. They hold tight to traditional practices, such as their process of releasing opinions, that make press coverage of the Court a uniquely challenging task. Not only do the justices refuse to allow cameras in the courtroom, but they delay release of audio of oral arguments until the end of each week and audio of opinion announcements until the beginning of the following Term.

While I think all of these practices should be reconsidered, for most of them I can see that there are some arguments on the side of tradition. (For a terrific discussion of these issues, see the video of this year’s Constitution Day event at Chicago-Kent.) But that last one—the delay of releasing audio of opinion announcements for several months—is pretty much indefensible. What possible purpose does this policy serve? In justifying their refusal to allow any live broadcast (video or audio) of oral arguments, the justices often talk about their fear of the media reducing complex points to misleading sound bites or of grandstanding by lawyers and justices. The sound-bite concern is minimal in the context of opinion announcements, though. The justices are summarizing their written opinions, so they have already taken the sound-biting into their own hands. Any possible risk of selective quotation would seem to be the same, or even less, than the risk of improperly quoting an excerpt from their written opinion. As for judicial grandstanding, I just have trouble seeing this as a problem. If anything, as I have noted in previous ISCOTUS posts, the justices tend to tone down some of the more accusatory language from their written opinions when reading a dissent from the bench. Anyway, a bit of grandstanding would not be a bad thing if one of the goals of an opinion announcement is to convey the importance of the issues at stake.

Furthermore, as I have explored in a law review article and previous posts, the justices (or perhaps their clerks) seem to put a good deal of time and thought into distilling their complex, often technical written opinions into a more accessible, compelling product for general consumption. At their best, opinion summaries—and particularly oral dissents—are the product of a thoughtful abridging of the written opinion. Justices sometimes reorder key points. They amplify certain arguments while muting others. They often highlight more tangible or evocative examples. Sometimes they land upon a nice turn of phrase that was not in the written opinion. (One of the most memorable lines in Justice Breyer’s oral dissent in Parents Involved—“It is not often in the law that so few have so quickly changed so much”—appears nowhere in his written dissent.) One would think the justices would want this live, condensed version of their opinion to be widely available. As it is now, the justices perform for a relatively miniscule audience in the courtroom. The best they can hope for is that a particularly notable performance might merit a mention in subsequent press accounts. This all makes little sense.

So here is my quite modest proposal: The Supreme Court should allow live broadcast of opinion announcements—preferably video, but audio would do. Or, if not live broadcast, then at least immediate release of video (or audio) recordings.

Bench announcements should be more important than they currently are. The voices of the justices, describing the reasoning behind their opinions in their own words, using language designed to appeal to the broader public, should be a part of the public debate that follows the release of a Court decision. They should be immediately available for teaching purposes as well. I have found bench announcements terrific teaching tools, particularly when working with audiences of non-lawyers. Not only do the justices do much of the work of condensing complex issues and highlighting key points, there is also something particularly engaging for students about hearing the opinions read in the justices’ own words. Why should students and engaged citizens need to wait until the following Term to listen to these bench announcements?

If the Supreme Court justices have any interest at all in bringing the Court’s public communications into the new century, and they certainly should, live video broadcast of opinion announcements would be a low-risk, high-benefit first step.

Weekly Roundup – November 7, 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.)

ISCOTUS director Chris Schmidt explores the challenges of measuring the Court’s historical performance.

Ideological splits in the Court were evident when the justices considered what Justice Kagan called the “tinderbox” of Jerusalem in Monday’s passport case, Zivotofsky v. Kerry.

The Court smells something “fishy” in the fraud charges brought in Yates v. United States.

What does a Republican Senate mean for the Supreme Court? According to Jeffrey Rosen in the New Republic, it means disaster if we have an opening on the Court.

The Court tacitly acknowledges the Senate’s ability to set its own procedures by rejecting a challenge to the Senate’s filibuster rule (behind paywall).

Will the recent circuit split in same-sex marriage finally lead to a ruling by SCOTUS? At SCOTUSblog, Lyle Denniston analyzes the available paths for bringing the issue of same-sex marriage back before the Court.

Ed Lee predicts the winners in this week’s cases by looking at the number of questions asked during oral argument.

Predicting the Winners in Yates v. US and Johnson 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. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Wednesday’s oral arguments were apparently filled with much laughter, as noted by the transcript. Perhaps the Court was in a good mood on the third day of arguments this week.

Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.

But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.

Figure 1.

Lee - 11.5.14 Yates v US

The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner—a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

Figure 2.

Lee - 11.5.14 Johnson v US


Predicting the Winners in DHS v. MacLean and Jesinoski v. Countrywide Home Loans

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. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Dep’t of Homeland Security v. MacLean asks whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information (SSI).

This is a very close call. The Court was very active in questioning both sides. By my count, each side received an equal number of questions (50), which is a relatively high number of questions for oral argument. If you break down the questions asked by Justice, 4 Justices (Scalia, Kennedy, Alito, and Kagan) asked the Petitioner fewer questions, although the differential was not great for Justices Scalia and Alito, who asked the Petitioner only 2 fewer questions. Two Justices (Roberts and Ginsburg) asked the Respondent fewer questions (6 and 5 fewer questions, respectively). Justices Breyer and Sotomayor asked both sides an equal number of questions (10 and 9, respectively). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. Justices Breyer and Sotomayor asking both sides an equal number of questions makes this case even harder to predict. Nonetheless, if I had to choose, I would give a slight nod to the Petitioner (Solicitor General) based on the higher number of Justices (4) who asked the Petitioner fewer questions.

Figure 1.

Lee - 11.4.14 Dept of Homeland Security v maclean

The second case, Jesinoski v. Countrywide Home Loans, Inc., asks whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held; or whether the borrower must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

This case is easier to predict. The Court asked the Petitioner (Jesinoski) 18 questions, the Solicitor General supporting the Petitioner 8 questions, and the Respondent (Countrywide Homes Loans) 36 questions. The total question count suggests a win for the Petitioner, who argued that a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction.

If you break down the questions asked by Justice, the tally also favors the Petitioner. Five Justices (Roberts, Scalia, Ginsburg, Breyer, and Kagan) asked the Petitioner’s side (including the SG) fewer questions, although Roberts, Ginsburg, and Kagan asked just one fewer question. Also significant is the fact that Chief Justice Roberts and Justice Breyer asked no questions at all—somewhat a rarity—to Petitioner or the SG supporting Petitioner. Only Justice Alito asked Respondent significantly fewer questions (0 questions to 7 to the Petitioner’s side). The SG’s support is another plus factor for the Petitioner’s position. In short, I predict a victory for the Petitioner.

Figure 2.

Lee - 11.4.14 Jesinoski v Countrywide