Predicting the Winners in TDHCA v. Inclusive Communities Project and Rodriguez 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. For more about this method and all of my predictions this Term, click here.

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. asks whether disparate-impact claims are cognizable under the Fair Housing Act.

As Figure 1 shows, the overall question count was very close: 44 questions to the Petitioner (Texas Dep’t of Housing) and 46 questions total to the Respondent (Inclusive Communities Project) (22) and the Solicitor General supporting the Respondent.  The question differential may suggest a slight edge to the Petitioner, but with a margin of error, it seems like a toss-up.

Figure 1.

Slide1

The question count by individual Justice suggests alignments along ideological lines, although Justice Scalia’s question count departs from the conservative line.

The question differentials that favor the Petitioner are from Chief Justice Roberts, and Justices Kennedy and Alito, who asked the Respondent’s side (including SG) 10, 2, and 5 more questions respectively.  On the other side, Justices Breyer, Sotomayor, and Kagan asked the Petitioner 3, 5, and 1 more question respectively. Justice Ginsburg asked both sides 4 questions.

That leaves Justice Scalia, who asked the Petitioner 6 more questions than he asked the Respondent’s side.  Unlike the break down for the other conservative Justices, the question disparity suggests a possible leaning toward the Respondent’s side,  Of course, this result would be a quite surprising alignment if Justice Scalia joined the 4 liberal Justices.   But I’ll go with what’s suggested by the numbers and predict a victory for the Respondent, who argued that disparate impact claims are cognizable under the Fair Housing Act.

The second case, Rodriguez v. United States asks whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification.

As Figure 2 shows, the overall question count favors the Respondent (Solicitor General): the Petitioner (Rodriguez ) received 56 questions, while the Respondent received 48 questions or 8 fewer questions.  The differential is not large, but it suggests a leaning toward the Respondent.

Figure 2.

Slide2

The individual count by Justice also favors the SG.  Only Justices Breyer and Kagan asked the SG more questions.  Based on these numbers, I’ll predict a victory for the SG, who argued “a police officer may conduct a dog sniff during a traffic stop, after issuing a traffic ticket, so long as the detention is not unreasonably prolonged.”

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