On Monday, the Supreme Court heard oral argument in Kingsley v. Hendrickson, which asks whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.

This case is difficult to predict because it’s an asymmetrical case involving 3 different positions and 3 advocates, though with different allotments of time.  The Solicitor General (presumably receiving 10 minutes as an amicus) argued in support of affirmance, supporting neither party.  The SG and Petitioners agree that the proper test is objective, but disagree on its application to the case (with the SG arguing that the jury instructions used below  incorporated an objective standard and therefore there is no need for reversal).

As shown in Figure 1 below, the total question count favors an affirmance.  The Petitioners received the most questions–17 more than the Respondents and 11 more than the SG.  Interestingly, the Respondents even received 5 fewer questions than the SG (which presumably had only 10 minutes of argument as amicus compared to the 25 minutes for the Respondents).  Paul Clement (former SG) represented the Respondents and received a noticeable amount of response time uninterrupted by the usual flurry of questions.

Figure 1.

The count by Justice also favors affirmance.  Four Justices asked the Respondents the fewest questions of the 3 advocates–indeed asking only 1 question total to the Respondents: Roberts (0), Scalia (1), Kennedy (0), and Alito (0).  By contrast, Justice Ginsburg asked the Petitioner 3 questions, the SG 2 questions, and the Respondents 4 questions.  Justice Breyer asked the Petitioner and Respondents 2 questions each, but the SG 8 questions.   Justice Sotomayor asked the Petitioner 1 question, the SG 2 questions, and the Respondents 7 question.  Finally, Justice Kagan asked the Petitioner 1 question and the Respondents 5 questions, but none to the SG.

Based on these numbers (especially the 5 conservative Justices asking only 1 question to the Respondents) , I will go with either an affirmance or a victory for the Respondents.