The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method and all of my predictions this Term, click here.  Both cases are very close calls.

Armstrong v. Exceptional Child Center, Inc. asks whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute.

This is a close call, but my prediction is win for the Petitioner (Armstrong).  As Figure 1 shows, the Court asked the Respondent 53 questions, 8 more than the total questions asked of both Petitioner and Solicitor General as amicus supporting the Petitioner.

Figure 1.

The question count by Justice suggests a close case, however. The question differentials that favor the Petitioner were from Chief Justice Roberts and Justices Scalia, Alito and Breyer, who asked the Respondent 8, 12, 5, and 3 more questions respectively compared to the Petitioner’s side.  On the other side, Justice Kennedy’s question count favors the Respondent, but he’s less predictable based on his question counts. Kennedy asked 5 questions to the Petitioner’s side but no questions to the Respondent.   Justices Ginsburg (+2), Sotomayor (+10), and Kagan (+3) also asked more questions of the Petitioner’s side.  With a pretty even balance on the counts by individual Justice and Justice Thomas possibly joining the three conservative Justice group that appears to be leaning toward the Petitioner, I’ll stick with the overall question count that favors the Petitioner, who argued that Medicaid providers have no private right of action under the Supremacy Clause in this case.

The second case, Williams-Yulee v. The Florida Bar, asks whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

As Figure 2 shows, the total question count was very close: the Petitioner received 45 questions, while the Respondent received 44 questions, by my count.  With a margin of error, it’s basically a tie.

Figure 2.

The question count by individual Justice was very similar to the count in the earlier Armstrong case in terms of alignments.  The question differentials that favor the Petitioner were from Chief Justice Roberts and Justices Scalia, Breyer, and Alito, who asked the Respondent 5, 9, 8, and 3 more questions respectively than they asked the Petitioner.   On the other side, the question differentials that favor the Respondent were from Justices Kennedy (+7), Ginsburg (+5), Sotomayor (+2), and Kagan (+7), who asked more questions to the Petitioner (by the amounts indicated).

This is a close case, but I will go with a win for the Petitioner, who argued the Florida’s rule of judicial conduct violates the First Amendment.  Just as in the Armstrong case, I like the strength of the highest question differentials of the Chief and Justice Scalia plus add in Justices Breyer, Alito, and possibly Justice Thomas.  My confidence level is not very high, but I’ll give a slight nod to the Petitioner based on the question count by individual Justice.