The Supreme Court heard oral argument in two cases on Wednesday, which wrapped up the arguments for November. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument.  For more about this method, see my post on last Term’s Aereo case.

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

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

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

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

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

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

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

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

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

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

Figure 2.

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

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

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

Figure 1.

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

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

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

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

Figure 2.

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.

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.

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.

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.

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.

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.