On Wednesday, the Supreme Court heard oral argument in two cases, the final oral arguments scheduled this Term. Thanks to all who indulged my predictions for this Term. It’s been a fun, but at times rocky ride. I will have a more in depth review of my past predictions and success/failure rate this summer. I started out by correctly predicting the first 7 cases, but then things went south. Let’s hope I can keep my prediction rate over 50%, or, at least, that I correctly predict the Obamacare and same sex marriage cases. We’ll see.
The first case, Glossip v. Gross, asks ” (1) whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious; (2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.”
As Figure 1 shows, the total question count favors the Respondent (Gross, the Solicitor General of Oklahoma). The Court asked the Petitioners 21 more questions. The question count by individual Justice shows a split along ideological lines. Four conservative Justices asked more questions to the Petitioners: Roberts (+10), Scalia (+4), Kennedy (+1), and Alito (+19). Three liberal Justices asked the Respondent more questions: Breyer (+3), Sotomayor (+6), and Kagan (+4). Justice Ginsburg asked both sides 2 questions. Justice Thomas asked no questions.
Justice Kennedy appears again to be the swing vote. It’s a slim margin of 1 question more to the Petitioners, which is a virtual tie. But, if I have to make a prediction, I will go with a victory for the Respondents (SG of Oklahoma).
The second case, Mata v. Lynch, asks whether the Fifth Circuit erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).
The Court ended the Term’s oral arguments on a whimper. In the final oral argument, the Court asked only 41 questions total to 3 attorneys, a number that may be the fewest asked all Term if my memory serves me correct.
Because this is an asymmetrical case (3 attorneys), it’s more difficult to predict. As Figure 2 shows, the number of questions asked to each of the 3 attorneys was pretty even: 15 to the Petitioner, 12 to the Solicitor General supporting reversal, and 14 to the Court-appointed attorney supporting affirmance. The question count by Justice doesn’t reveal much. Given the relatively few number of questions asked, the differentials in questions asked to each side is modest. And the Court may not have wanted to pepper the Court- Appointed Amicus with questions for a position that the SG didn’t support. Although the numbers are close, given the SG’s support of a reversal, I will go with a win for the Petitioner or a reversal.