On Tuesday of this past week, the Court heard two oral arguments. I’m predicting the winners based on the method of counting the number of questions. After 17 decisions handed down, my predictions have been correct 65% of the time, which means I have fallen off after going 100% correct in the first 6 decisions.
The Court finally gave me an easy case to predict! I predict a victory for the Petitioner (Henderson) in Henderson v. United States, which asks whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
The Court asked the Respondent (Solicitor General) 54 questions, 22 more questions than it asked the Petitioner (Henderson). The large disparity in questions signals a likely victory for the Petitioner.
The second case, Tibble v. Edison Int’l, asks whether a claim that ERISA plan fiduciaries breached their duty of prudence by offering higher-cost retail-class mutual funds to plan participants, even though identical lower-cost institution-class mutual funds were available, is barred by 29 U.S.C. § 1113(1) when fiduciaries initially chose the higher-cost mutual funds as plan investments more than six years before the claim was filed.
This case is a little bit more difficult to predict because it is what I call an asymmetrical case with 2 lawyers on 1 side and 1 lawyer on the other side. The question count for the side with 2 lawyers may be inflated by some questions the Court may want to ask both lawyers for that side.
In this case, the Court asked the Petitioner’s side (Petitioner Tibble and the SG supporting the Petitioner) 35 questions, 6 more than it asked the Respondent (Edison International). Because of the asymmetrical nature of the case, I don’t place too much stock in this differential. Justice Sotomayor asked 5 questions during the Petitioner’s rebuttal, which all but accounts for the differential.
Moreover, if you look at the questions by individual Justice, the Court appears to be leaning to the Petitioner’s side. Five Justices asked the Petitioner’s side fewer questions: Chief Justice Roberts (-1), Justices Kennedy (-2), Ginsburg (-4), Alito (-4), and Kagan (-5). Three Justices asked the Respondent fewer questions: Justices Scalia (-8), Breyer (-5), and Sotomayor (-9). Although the 3 Justices’ differentials are higher, I will stick with the 5 Justices who asked fewer questions to the Petitioner’s side. I see a victory for the Petitioner (Tibble).