Predicting the Winners in Holt v. Hobbs and Dart Cherokee Co. v. Owens

The Supreme Court heard oral argument in two cases on October 7, 2014. I’m predicting the winners of the cases based on the method of question counting—i.e., the advocate that 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.

The first case may be too close to call. In Dart Cherokee Basin Operating Company, LLC v. Owens, the Court considered whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.” The Petitioner Dart Cherokee received 48 questions, three fewer than the Respondent Owens, who received 51 questions. The total question count is favorable to the Petitioner. But if you look at the questions per Justice, five of the Justices (Roberts, Scalia, Kennedy, Sotomayor, and Kagan) asked more questions to the Petitioner. Three other Justices (Ginsburg, Breyer, and Alito) asked more questions to the Respondent.   The individual question count by Justice might suggest a favorable outcome for the Respondent. This case is a toss-up.

Figure 1.

Lee - 10.8.14 Dart Cherokee v Owens questions

The second case is easier to predict. In Holt v. Hobbs, the Court considered whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs. The Respondent Hobbs, Director of the Arkansas Department of Corrections, received twice as many questions (52) as the Petitioner (23)—and seven more questions than the total number for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Holt.

Figure 2.

Lee - 10.8.14 Holt v Hobbs questions

Heien v. North Carolina—Predicting the Winner Based on the Oral Argument

[Reposted from IIT Chicago-Kent Faculty Blog]

The Supreme Court opened its October 2014 Term by hearing oral argument in Heien v. North Carolina, which raises the question: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop?

I am using the same method of predicting the winner of the case that I have used before, which is based simply on the total number of questions each party receives. Other scholars have shown that the more questions an advocate receives during oral argument before the Supreme Court, the more likely the advocate will lose the case. For more about this method, see my post on last Term’s Aereo case.

Figure 1.

Lee - 10.6.14 Heien v North Carolina questions

In this case, we have the confounding factor of the Solicitor General’s participation on the side of the Respondent. The participation of the SG is confounding in two respects: (1) it decreases the time the party whose side it supports has during the oral argument (usually by 10 minutes), thus decreasing the time the party is questioned and increasing the likelihood the party will receive fewer questions than the opposing party, who is questioned for the full 30 minutes; and (2) the Supreme Court often ends up agreeing with the side that the SG supports.

I also should mention that I am not an expert in Fourth Amendment law and have not studied the Court’s jurisprudence in this area (at least not since law school).

With those caveats in mind, my prediction is that the Supreme Court will side with the State of North Carolina, which received eleven fewer questions than the Petitioner. However, the disparity of questions between both parties is not large, so my confidence level in the prediction is not very great. From my analysis of last year’s IP cases, the predictive value of the question-counting method appeared to work best when the disparity of questions between the parties was great (excluding the SG’s participation). If we calculate the questions asked per minute to each party, the Respondent North Carolina actually had the higher rate of questioning (1.55 questions per minute versus 1.4 questions per minute for the Petitioner).

As the Term progresses, I hope to refine the method, especially in cases in which the SG participates. But for now, my prediction in this case will be for North Carolina.

Religious Rights and Bearded Prisoners

Tomorrow the Supreme Court will hear oral arguments in an intriguing religious freedom case brought by Gregory Holt.

Holt is in an Arkansas prison, serving a life sentence for burglary and domestic battery. While in prison, Holt converted to Islam, took the name Abdul Maalik Muhammad, and, in accordance with his religious beliefs, sought to grow a beard. Arkansas prison regulations forbid facial hair other than a mustache. By refusing to allow him to grow a half-inch beard, Holt argues, prison authorities violate his rights under a federal law designed to protect religious exercise for prisoners. Arkansas counters that their policy is designed to prevent inmates from hiding contraband and to protect security. The courts, Arkansas argues, should defer to the judgment of the state’s prison officials.

Two factors make this case make particularly noteworthy. First, Holt wrote, by hand, his own appeal to the Supreme Court. He filed his petition “in forma pauperis,” an often used (particularly by prisoners) but almost never successful path to Supreme Court review that allows impoverished individuals to submit an appeal without paying the standard filing fees.

(Most famously, Clarence Gideon wrote his own in forma pauperis petition from a Florida prison, setting in motion events that led to the landmark 1963 Court ruling in Gideon v. Wainwright, which held that states are required to provide a lawyer for felony defendants who are unable to pay for their own lawyer.)

In fourteen painstakingly careful, handwritten pages, Holt argued why the Supreme Court should take his case. He raised religious freedom claims under both federal law and the First Amendment. The refusal of Arkansas prison authorities to grant religious exemptions to their no-beard policy is “intolerably oppressive and force[s] inmates to either obey their religious beliefs and face disciplinary action on the one hand or violate their beliefs in order to acquiesce with the grooming policy.” Holt noted that federal and other state prison policies achieve the same security goals without such a restrictive grooming policy. He also pointed out that Arkansas allows prisoners with “certain dermatological conditions” to grow a quarter inch beard, and therefore “it is not too far of a stretch to allow 1/2 inch beards for religious purposes.”

Holt concluded his petition by condemning Arkansas prison officials for being particularly restrictive toward the practice of Islam by inmates. According to Holt, his case raises “a matter of grave importance, pitting the right of Muslim inmates against a system that is hostile to these views.” He noted that “There are no group worship services, sajadahs (prayer rugs) are not allowed, there is extremely limited access to an Islamic spiritual advisor constituting no real meaningful access, Islamic publications are limited and Islamic catalogs are classified as books that, should they exceed the 10 book total limit, are subject to confiscation and there are no alternatives to religious instruction.” Growing a beard, Holt suggested, would provide “a suitable alternative form of religious expression.”

When the Supreme Court agreed to hear his case, it assigned him an attorney. In this case, Holt was assigned Douglas Laycock, a professor at the University of Virginia and one of the country’s leading religious rights lawyers (he appeared before the Court last term in Town of Greece v. Galloway).

The second intriguing element of this case is that it brings to the Supreme Court a religious liberty claim with powerful echoes of last term’s controversial Hobby Lobby decision.

When it accepted his case for review, the Supreme Court also narrowed the scope of Holt’s appeal. The Court will not consider his First Amendment claim. The justices will limit their review to his statutory claim, which was based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), a law Congress passed in 2000. RLUIPA prohibits government policies that “impose[] a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government can show that the policy is the least restrictive way of advancing a “compelling governmental interest.”

For followers of the Supreme Court, this legal language should sound familiar: it is the exact same test the Court applied in its controversial Hobby Lobby decision from last term. Both the federal law that Hobby Lobby successfully used to challenge the Affordable Care Act’s contraception mandate (the Religious Freedom Restoration Act) and the federal law under which Holt seeks protection were congressional responses to a 1990 Supreme Court decision that made free exercise claims more difficult to win under the First Amendment.

One key difference this time around, however, is that Holt has the federal government on his side. The Justice Department submitted a brief in the case supporting Holt.

 

 

Same-Sex Marriage Issue on Hold at the Supreme Court—For Now

In a turn of events that caught many Court-watchers off guard, the Supreme Court today denied review of the seven pending cases challenging state prohibitions on same-sex marriages. In recent weeks, a consensus seemed to be emerging among commentators that this was the Term in which the Court would return to the same-sex marriage fray—and this time the justices would squarely face the big issue: whether the Constitution required states to recognize same-sex marriages. This prediction may still come true, but now it all seems to depend on what happens in the Sixth Circuit Court of Appeals, which is currently deliberating on challenges to same-sex marriage bans in four states (Kentucky, Michigan, Ohio, and Tennessee). All the cases the Court refused to review involved federal appeals courts that had struck down same-sex marriage bans. If the Sixth Circuit breaks from this pattern and upholds a same-sex marriage ban, we will have a “circuit split,” which generally ensures that the Supreme Court will feel compelled to step in and decide the issue.

So what is the three-judge Sixth Circuit panel likely to do? Those who listened to oral arguments in the cases saw a closely divided panel, with most predicting the court would uphold the same-sex marriage prohibitions. Whether today’s denials of certiorari at the Supreme Court might influence the judges on the Sixth Circuit is anyone’s guess. But what does seem pretty certain in light of today’s events at the Supreme Court is that a Sixth Circuit decision upholding gay marriage bans would be short-lived. The Supreme Court will surely overturn any appeals court ruling that breaks from the pattern that it has tacitly, but clearly, approved of today.

Is Same-Sex Marriage Coming Back to the Supreme Court This Term?

We know same-sex marriage is coming back to the Supreme Court. What we don’t know is when.

The lineup of cases for the Court’s upcoming term is rather light on cases that really capture public attention. There are plenty of interesting cases on tap, but no real blockbusters. If the justices are interested in livening up a relatively quiet term at the Court, adding a same-sex marriage case would do the trick. But do the justices—or at least the four justices required to grant cert—feel the time is at hand to take on this issue again?

At this point, we’re all reading the tea leaves.

Since it’s likely that Justice Ginsburg will play a particularly influential role in deciding when the justices take up the issue, her recent comments have been the object of much attention. For a while, she seemed to be signaling her concern that the Court needed to be cautious on the issue. But this summer she gave an interview in which she was almost enthusiastic about the possibility of the Court taking on gay marriage. The Court won’t “duck” the issue as they did interracial marriage in the 1960s, she explained, predicting that the Court will decide the issue by June 2016, perhaps sooner. Recently, however, Justice Ginsburg seemed to back off a bit, suggesting that the Court should wait for a split among federal appeals courts. (All the cases currently pending before the Supreme Court involve appeals of rulings that have struck down gay marriage bans.) Until then, there is “no need for us to rush.” She said that people should keep an eye on the Sixth Circuit, which will soon issue a ruling in a same-sex marriage challenge.

The Supreme Court currently has seven cases from three different federal circuit courts from which to choose. These cases involve gay marriage bans in five different states (Virginia, Utah, Oklahoma, Wisconsin and Indiana). Both winning and losing lawyers in these cases are asking for Supreme Court review.

On Thursday the Court added a number of new cases to the docket, but no gay marriage cases were among them. Some commentators are still confident that this is the term for the big gay marriage case. And so we wait.

Weekly Roundup – July 30, 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.)

Wondering what the Court will hear next term? Check out Oyez’s 2014 list of cases thus far

What happens when you invite Justice Ginsburg to your wedding? She responds.

Looking for a detailed explanation of the Supreme Court decision in Fifth Third v. DudenhoefferWatch our latest video

Conflicting rulings from appellate courts last week nearly guarantees Obamacare landing before the Supreme Court once again

What does the Aereo decision mean for the future of the cloud?

Find out which of the Justices has a theatrical past

Linda Greenhouse predicts that the Supreme Court will not rehear Fisher’s affirmative action case

Weekly Roundup – July 23, 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.)

Chief Justice Roberts calls opposing lawyers “friends” – does it make a difference?

What’s happening in the Town of Greece after the recent Supreme Court ruling?

Might Congress pass a bill that would effectively overrule the Hobby Lobby decision?

One of the first cases the Court will hear in the October 2014 Term deals with prisoners’ religious freedom

Ever wonder what the Supreme Court justices do in their downtime? Wonder no longer — there’s a map for that

Will Aereo’s next idea prevent its own untimely end?

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Weekly Roundup – July 16, 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.)

In case you missed it: Find all of our videos explaining the decisions from this Supreme Court Term in one place

The Supreme Court chose not to hear the appeal of Google’s Street View case, leaving Google vulnerable to lawsuits for collecting personal data

The Supreme Court will hear a case challenging UPS’s refused accommodation for a pregnant employee

Hobby Lobby, Corporations & Constitutional Rights, by Prof. Christopher Schmidt

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Weekly Roundup – July 3, 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.)

Our director, Professor Christopher Schmidt, explains the Hobby Lobby ruling and its implications

Learn more about the Supreme Court’s decision in the Aereo case from Prof. Ed Lee in this video

A unanimous Supreme Court holds that police need a warrant to search the cell phone of an arrestee. Prof. Godfrey explains in our video

The Supreme Court ruled to limit the president’s recess appointment power. Prof. Greenberg explores the ruling in our video

Professor Schmidt discusses corporate rights in light of this week’s ruling in favor of Hobby Lobby

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