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The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

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

 

Predicting the Winners in Zivotofsky v. Kerry and Omnicare v. Laborers District Council

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. 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.

Zivotofsky v. Kerry asks whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional, on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

This is a very close call. Petitioner (Zivotofsky) received 51 questions, while the Respondent (Solicitor General) received 46 questions. If you break down the questions asked by Justice, 3 Justices (Roberts, Scalia, and Alito) asked the Petitioner fewer questions, and 4 Justices (Kennedy, Breyer, Sotomayor, and Kagan) asked the Solicitor General fewer questions. Justice Ginsburg asked both sides an equal number of questions. Justice Thomas asked no questions. Given the conservative and liberal alignment of Justices in the question count, the key in this case appears to be Justice Kennedy. My confidence level is not high in predicting Kennedy’s vote based on the question count. He asked only one question more of the Petitioner, and his prior questioning in other cases does not correspond as well to the predicted pattern of outcomes based on question counts. Nonetheless, if I had to choose, my predicted winner is the Respondent (Solicitor General).

Figure 1.

Lee - 11.3.14 zivotofsky v kerry

The second case, Omnicare v. Laborers District Council, asks whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or whether the plaintiff must also allege that the statement was subjectively false—requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held.

This case is also very hard to predict. The Court asked the Petitioner (Omnicare) 31 questions, Respondent (Laborers District Council) 21 questions, and the Solicitor General supporting Respondent 12 questions. Thus, the questions per side were fairly balanced (31 to 33 questions). If you break down the questions asked by Justice, the tally does not reveal much. Justices Ginsburg, Breyer, and Kagan asked the Petitioner’s side (including the SG) more questions (4, 5, and 4 more questions, respectively). Justices Alito and Sotomayor asked the Respondent’s side more questions (10 and 5 more questions, respectively). Chief Justice Roberts asked the Respondent’s side two more questions, whereas Justice Scalia asked the Petitioner two more questions. Justice Kennedy asked one question each to the Petitioner and to the SG. The SG’s support is a plus factor for the Respondent’s position, but I find the case too close to call based on just the question count.

Figure 2.

Lee - 11.3.14 omnicare v laborers

Measuring the Supreme Court

How does one measure the overall performance of the Supreme Court? This problem is at the heart of Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky’s basic argument is that, when measured over the course of American history, the Supreme Court has done more harm than good. When faced with “its most important tasks, at its most important moments,” the Court has, more often than not, failed to serve the American people. This is a provocative claim, and it deserves serious consideration. Whether one accepts the claim, however, will likely depend on whether one accepts a series of assumptions on which it is based. They include: that it is even possible to measure Court rulings in this sort of net-benefit-to-society way; that Chemerinsky chooses the correct metrics in determining whether a particular Court ruling belongs in the failure or success column; and that Chemerinsky’s overall tally of Court failures and successes supports his larger claim that the Court has been, on balance, a failure.

These are big questions, each deserving lengthy exploration. I will only be able to touch on them briefly in this post. First, how does one even begin to measure whether a given Court opinion was a good thing or not? It is hard enough to establish any sort of objective measure of the written opinion itself. (More on this in a moment.) But add to this the difficulty of assessing the way Court rulings operate in society and the problem becomes frightfully complicated. Bad rulings can have the effect of mobilizing opposition movements that have benefits for society. (E.g., Bowers v. Hardwick, which helped mobilize gay rights activists.) Good rulings can incite backlash movements that have costs for society. (Brown is the obvious example here.) And then there are the unexpected consequences of practically all major Court rulings—the good, the bad, and the mixed. (Read the late William Stuntz’s brilliant writing on the effects of the Warren Court’s criminal justice revolution and you’ll get a sense of the dilemma here.) All of this is to say that measuring something as complicated as a Supreme Court ruling is an astoundingly difficult task, one that demands not only an assessment of the written opinion but also of the complex, often unanticipated effects of a given Court ruling in society.

What about the particular metrics Chemerinsky uses to assess major Supreme Court rulings? Two points are worth noting here. One is that Chemerinsky focuses his analysis mostly on written opinions. He generally assumes that social effects can be extrapolated from the opinions themselves. The book does not give much space to the complexities unearthed by generations of judicial impact scholarship. This is, I believe, a significant shortcoming of the book. But it is also an understandable choice in a book written by a scholar whose expertise lies predominantly in the area of constitutional doctrine, not socio-legal scholarship, and whose primary goal is to provoke debate. (The basic conclusion found in most judicial impact scholarship is that the effects of bad cases are never quite as bad as feared, while the effects of good cases are never quite as good as hoped. Thus, this scholarship would largely work to undermine or at least weaken the simplicity and boldness of Chemerinsky’s case against the Court.)

The other complication—one that Chemerinsky recognizes but does not resolve—is the difficulty, and perhaps the impossibility, of locating criteria by which to measure whether a Court decision was a success or failure that does not just reduce to the ideological commitments of the author. Chemerinsky tries to negotiate this problem by emphasizing those decisions that have been universally praised or condemned. These are the decisions that reside in either the canon or “anticanon” of Supreme Court jurisprudence: Brown, West Virginia v. Barnette, Gideon v. Wainwright, Reynolds v. Sims, on the one side; Dred Scott, Plessy, Lochner, Buck v. Bell, Korematsu, on the other. But even if these categorizations are accepted (certainly not all would agree on this point), Chemerinsky does not confine his analysis to these canonical and anticanonical cases. After all, these cases constitute only a small minority of the Court’s decisions. To make his case against the Court, he compiles a list of successes and failures that includes much more controversial categorizations, placing rulings whose merits are still quite contested—such as recent Court decisions involving affirmative action or the scope of congressional power—into either the failure or success columns. And despite his protestations to the contrary, Chemerinsky’s assessments follow predictable lines: decisions favored by liberals are successes, those favored by conservatives, failures.

Finally, once one settles on a way to define success and failure for the Court, how does one compare them? Does Dred Scott plus Brown equal success, failure, or a wash? Bad decisions that upheld bad policy (such as Plessy or Korematsu) do not provide the same evidence in the case against the Court as bad decisions that overturned good policy (e.g., Dred Scott, Lochner). Similarly, good decisions that upheld good policy (e.g., West Coast Hotel, Heart of Atlanta) do not add the same value for Chemerinsky’s purposes as good decisions that strike down bad policy (e.g., Barnette, Brown, Gideon).

All of this is to say that Chemerinsky’s book is a great conversation starter. In the end, I found the questions underlying the eye-catching thesis more interesting than the thesis itself. Regardless of whether one agrees with Chemerinsky that the Court has failed more often than it has succeeded, it is fascinating just to think through the challenges of assessing the Court’s performance over its more than two centuries of history.

Weekly Roundup – October 31, 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.)

The three Yale-graduate justices visited their alma mater for an awards ceremony, where Justice Alito revealed his deadpan sense of humor.

Why has the Court seemingly gone silent even as it takes action on critical issues such as gay marriage, voting rights, and abortion? Adam Liptak reviews in the New York Times, and ISCOTUS director Chris Schmidt offers his own thoughts here.

Ruth Bader Ginsburg approves of John Oliver’s viral video sketch portraying the Supreme Court as nine talking dogs.

Why are we so fascinated with the justices’ cultural tastes? Time magazine examines the latest in a series of “cultural-diet revelations” from the judges.

The Court takes on its first case involving a federal whistleblower.

Does a child’s wish to list “Israel” as the nation of birth on his American passport disrupt the Obama administration’s efforts to establish piece in the region? The Court hears oral arguments in the case next week.

Chris Schmidt considers Erwin Chemerinsky’s new book and America’s love-hate relationship with the Supreme Court.

Will the Court take another look at Obamacare?

America’s Love-Hate Relationship with the Supreme Court

I’m currently reading Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky is a very persuasive advocate. His writing is clear and accessible, his tone moderate and open. The portrait he paints of the Court is pretty bleak. “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments,” he writes. I’m not going to say that Chemerinsky fully makes his case, but he has a pretty good go at it. For anyone who begins the book with visions of the Supreme Court as the defender of the dispossessed and disempowered, the book offers a bracing ride. The Court that emerges from this book is beaten and battered, a diminished institution whose failures, in Chemerinsky’s final estimate, far outweigh its achievements.

Although The Case Against the Supreme Court is particularly notable in that it is the work of an unabashed admirer of the Court who has become deeply disillusioned, Chemerinsky’s basic critique of the Court is very much in line with the zeitgeist today. A critical posture toward the Court has become standard fare—increasingly so, I think. We have also seen a general chastening of expectations of what the Court can and should do. Public opinion of the Court has steadily declined in recent decades. Scathing attacks on the Court, while always a part of our public discourse, are now common. While much of this can be explained by liberal frustration with the conservative tendencies of the Rehnquist and Roberts Courts, it cannot be reduced to this. Some of the most condemnatory attacks on the Court have come from the political right. Also, a growing number of scholars have gone down the path that Chemerinsky recently discovered, questioning not only the current Court but the institution itself. Some have urged us to consider whether the costs of judicial review outweigh the benefits; others have suggested that even the most iconic of Court achievements, such as Brown v. Board of Education, gave the nation far less than we might have thought. The Supreme Court has come in for some rough sailing of late.

So why, then, is there so much public fascination—a fascination that sometimes approaches idolatry—with the Supreme Court and the people who serve on it? This curious love-hate juxtaposition came to my mind, because while I was reading Chemerinsky’s diatribe against the Court I came across an article last week in the Washington Post on the social media industry that has grown up around the Court. We have a fantasy league for the Supreme Court. People are making animated re-creations of Court arguments. Comedian John Oliver’s oral argument skit with animals was a YouTube hit. The Justices have done their part to help fuel the Court-watching scene. They are out and about like never before, attracting impressive audiences and regular media attention wherever they go. Semi-revelatory memoirs seem to be the new norm for justices. Time just ran an article in its “Entertainment: Celebrities” section titled “Why People Love Reading About Supreme Court Justices’ Favorite Movies.”

What’s going on here? I think much of this can be attributed to various broader developments in American society. On the one hand, public fascination is fueled by the rise of social media, which allows networks of followers to form and expand, and by the fact that the Court has become a part of the broader celebrity-obsessed culture in which we live. On the other hand, disillusionment with the Court is fueled by growing ideological polarization coupled with a general decline in faith in institutions across American society.

Even as we think less and less of the Court, we seem to be thinking more and more about the Court.

Some Thoughts on a “Silent” Supreme Court

There has been much discussion about the Supreme Court’s recent string of highly consequential actions in which the justices have been conspicuously silent about what they are doing. Because of the great lengths the justices go to lay out the precise reasoning of their decisions, they often proudly proclaim the Court as the most transparent of the three branches of government. But this kind of transparency has not been in evidence when it comes to the most significant happenings at the High Court this Term. Most notably, when the Court refused certiorari in a series of same-sex marriage case appeals, no reasons were given. Although denials of certiorari typically do not come with explanations (it would be impractical, considering the thousands of cases the Court denies every term), some people thought such a momentous denial would at least elicit a disgruntled justice to issue a dissenting statement. But no. The Court was silent.

Predictably, some have voiced frustration with this reticent turn. How can the Court regularly intervene on such major constitutional issues yet not give the country any real guidance on what it is doing? Isn’t this the Court’s responsibility? Isn’t the very legitimacy of the Court based on its stated reasoning and not just on the consequences of its actions? These are all good points. But these kinds of criticisms are not particularly new, and it’s worth putting them into historical perspective.

For example, following Brown v. Board of Education (1954), the Court issued a series of per curium decisions extending the desegregation requirement of Brown from public schools to other state-operated facilities—beaches, golf courses, buses, parks. The reasoning in these opinions was little more than a citation to Brown. Many legal scholars asked what the Court was doing here. This extension of Brown was particularly curious because the Brown decision seemed to draw on the specific costs of racial segregation in schools as a basis for its decision. Could the same psychological harms that (the Court suggested) resulted from state-enforced segregation in schools also be found in state-enforced segregation on golf courses and beaches? Critics of these decisions had a point, but with some historical perspective these criticisms appear small in connection with the broader work being done by the Court to advance the cause of civil rights.

Like the post-Brown per curium decisions, the Court’s reticence on same-sex marriage will fare just fine in the judgment of history. The justices know this. They are playing the long game.

States’ Rights and White Teeth

On Tuesday, the Supreme Court heard a case involving the North Carolina dental board’s efforts to regulate the market for teeth-whitening services. Why, you may ask, is the nation’s highest court concerning itself with this kind of case? The answer, argues Noah Feldman, is states’ rights. The lawyers representing the dental board argue that this is a case about protecting the states from regulatory overreach by the Federal Trade Commission.

The basic issue before the Court is as follows: The North Carolina State Board of Dental Examiners was created by the state, but the state does not oversee its operations. Most of the board members are selected by the state’s dentists. The board decided to prohibit anyone other than a dentist from performing teeth-whitening procedures—an obvious effort to a serve the financial interests of North Carolina dentists. The FTC sanctioned the dental board for anticompetitive practices, and a federal court upheld the FTC decision. But the dental board argues that it does not fall under the jurisdiction of the FTC because it is a state organization—and state organizations are generally exempt from federal antitrust regulation. The Supreme Court must now decide whether the board—which, while created by the state, is not under the direct supervision of the state—falls under the protective shield of “state action immunity” from FTC regulation. (For more details on the case, check out the SCOTUSblog preview here.)

At oral arguments on Tuesday, the lawyer representing the board hit his big theme right from the start. “[R]espect for federalism,” he told the justices, “requires deference to a State’s sovereign choices concerning how to structure and manage its own regulatory agencies.” And he kept returning to his federalism theme: “[F]undamentally, it is a question for the State to determine whether it wants to bear that risk”—i.e., of granting substantial autonomy to a regulatory board staffed by obviously self-interested actors. “The State has decided that the benefits of having market participants make decisions and not having their every—each and every decision actively second­-guessed by a higher level of bureaucracy is worth it.”

We’ll have to wait and see whether these kinds of federalism arguments will win over the Court. Justices Alito and Scalia were particularly aggressive in questioning the federal government lawyer about how closely the FTC could delve into the workings of state organizations when determining whether “state action immunity” applied to that organization. The lawyer for the dental board appeared to be subject to more frequent and more skeptical questioning than the government lawyer—a possible indication that the Court is leaning toward upholding the FTC ruling.

Predicting the Winners in Teva Pharmaceuticals v. Sandoz and Jennings v. Stephens

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.

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. asks whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires, or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

The Petitioner Teva argued that Federal Rule of Civil Procedure 52(a) applies and the Federal Circuit must apply a deferential clear error standard of review to the district court’s findings of facts that underlie its claim construction of the patent. The Respondent Sandoz argued that de novo review applied because of the Supreme Court’s Markman decision. The Solicitor General, supporting neither party, argued that Rule 52(a) applies to any subsidiary factual findings related to claim construction, such as to the underlying science related to the invention. But the SG also argued that applying the clear-error standard would not likely alter the Federal Circuit’s conclusion that the patent was indefinite and that, ultimately, the Supreme Court should remand the case back to the Federal Circuit to consider the correct standard. In a footnote in its brief, the SG even conceded its approach might make any later ruling on remand irrelevant if it occurs after Teva’s patent expiration in September 2015.

My prediction is that the Supreme Court will reverse the Federal Circuit decision insofar as it failed to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below. The Respondent Sandoz received 40 questions, 7 more than the Petitioner Teva. The differential suggests a win for Teva, at least in some respect.

The SG’s more nuanced position makes it more difficult to predict the entirety of the Supreme Court’s ruling. The SG, which received 12 questions in 10 minutes, agreed that Rule 52(a) should apply to subsidiary factual findings, but had a much different take on the merits of Teva’s patent and how the case should proceed on remand. In past cases, the Supreme Court has tended to side with the SG’s positions. In this case, though, I think the Court is unlikely to find appealing the possibility of a remand that could be mooted by the expiration of Teva’s patent. So, looking beyond simply the number of questions during oral argument, I predict that the Supreme Court will resolve the case and issue of the definiteness of the patent applying Rule 52(a) to the district court’s factual findings, instead of remanding that determination for the Federal Court. Whether or not the Supreme Court will find Teva’s patent claim definite is harder to predict. All I can say is that it should help Teva’s side, at least modestly, to have a Rule 52(a) standard of review.

Figure 1.

Lee - 10.15.14 Teva v Sandoz (edited)

The second case, Jennings v. Stephens, asks whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected, even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

My prediction is that the Court will side with the Respondent Stephens’ position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

Figure 2.

Lee - 10.15.14 Jennings v Stephens

UPDATE on October 20: Individual Justice Analysis Suggests Close Call

I had a chance to go back over the question count per Justice. This examination paints a different picture of the possible winner than my earlier analysis of the total question count during oral argument. In contrast to using the Court’s total question count as a predictor, the question count by individual Justice leans slightly in favor of the Respondent Sandoz.

Five of the Justices (Roberts, Kennedy, Ginsburg, Alito, and Sotomayor) asked the Respondent fewer questions than the Petitioner—which suggests a more favorable outcome for the Respondent. It should be noted, however, the differential was not large. For four of these Justices (Roberts, Kennedy, Alito, and Sotomayor), the question differential was only one or two questions. Justice Kennedy, whose vote in past studies was harder to predict based on question counts, asked the Petitioner Teva just one more question than the Respondent (4 to 3). Justice Ginsburg was the only Justice who asked the Petitioner twice as many questions (6 to 3).

By contrast, three of the Justices (Scalia, Breyer, and Kagan) asked the Petitioner fewer questions by large margins. Indeed, Justices Scalia and Kagan asked the Respondent twice as many questions than the Petitioner (6 to 3, and 7 to 3 questions), while Justice Breyer asked more than three times as many questions to Respondent (14 to 4). (Justice Thomas did not ask any questions.)

So has this analysis changed my original prediction? To some extent, yes. I am less confident in the prediction, given the individual Justice breakdown. However, given the Solicitor General’s position in the case and the total question count plus three Justices with larger question differentials in favor of the Petitioner, I am going to stick by my original prediction that the Supreme Court will reverse the Federal Circuit decision for failing to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below.