Monthly Archives: November 2014

OT 2013

A Look Back—Justice Breyer’s Oral Dissent in McCutcheon

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In previous posts, I discussed last Term’s oral dissents by Justices Sotomayor (Schuette) and Ginsburg (Hobby Lobby)—all now available on Oyez. I now turn to the other major oral dissent of the Term: Justice Breyer’s in the campaign finance case, McCutcheon v. FEC.

Justice Breyer’s oral dissents are particularly interesting listening, because they put on display a side of the justice we don’t often see. For anyone who has struggled to follow his meandering, professorial hypotheticals during oral argument, or anyone who has nodded off while listening to one of his public lectures, it is refreshing to hear the more direct and passionate Justice Breyer who comes through in his oral dissents. We saw this in his widely noted oral dissent in Parents Involved, the 2007 decision striking down the use of race in public school pupil assignment, and we saw this again last term in his McCutcheon bench dissent. In his ability to connect with an audience, he still falls well behind some of his colleagues—Scalia, Kagan, and Sotomayor, most especially—yet he comes quite a bit closer in these oral dissents.

Breyer’s oral dissent in McCutcheon diverges from his written dissent in two minor but interesting ways. First, he adopts a more colloquial, evocative tone and language to express his frustration with the majority’s reasoning in striking down aggregate limits on campaign contributions. Some of his modifications and additions seem designed to better engage a wider public. He adds a nice line about how the majority has replaced a set limit on aggregate campaign contributions with “a new number: infinity.” And he also adds the following catchy line: “If the Court in Citizens United opened the door, today’s decision, we fear, will open the floodgates.”

Second, in his oral dissent Breyer tones down (just a touch) his attack on the majority. He adds small qualifiers to some of his most accusatory lines. The following line—“Taken together with Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve”—becomes this—“Taken together with Citizens United, today’s holding, we fear, eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” Also, at one point he throws in a compliment to Chief Justice Roberts, the author of the opinion of the Court, noting that his opinion is a “good opinion—although I don’t agree with it.” We’ve seen this kind of thing before. It’s not easy to launch an attack on an opinion when the author of that opinion is sitting only feet away. This can cause the oral dissenter to pull some punches (as Sotomayor did in her Schuette oral dissent) or, in this case, to go out of the way to emphasize that the critique is not a personal one.

 

 

OT 2014, Predicting the Winners

Predicting the Winners in Yates v. US and Johnson v. US

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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. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Wednesday’s oral arguments were apparently filled with much laughter, as noted by the transcript. Perhaps the Court was in a good mood on the third day of arguments this week.

Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.

But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.

Figure 1.

Lee - 11.5.14 Yates v US

The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner—a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

Figure 2.

Lee - 11.5.14 Johnson v US

 

OT 2014, Predicting the Winners

Predicting the Winners in DHS v. MacLean and Jesinoski v. Countrywide Home Loans

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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. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Dep’t of Homeland Security v. MacLean asks whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information (SSI).

This is a very close call. The Court was very active in questioning both sides. By my count, each side received an equal number of questions (50), which is a relatively high number of questions for oral argument. If you break down the questions asked by Justice, 4 Justices (Scalia, Kennedy, Alito, and Kagan) asked the Petitioner fewer questions, although the differential was not great for Justices Scalia and Alito, who asked the Petitioner only 2 fewer questions. Two Justices (Roberts and Ginsburg) asked the Respondent fewer questions (6 and 5 fewer questions, respectively). Justices Breyer and Sotomayor asked both sides an equal number of questions (10 and 9, respectively). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. Justices Breyer and Sotomayor asking both sides an equal number of questions makes this case even harder to predict. Nonetheless, if I had to choose, I would give a slight nod to the Petitioner (Solicitor General) based on the higher number of Justices (4) who asked the Petitioner fewer questions.

Figure 1.

Lee - 11.4.14 Dept of Homeland Security v maclean

The second case, Jesinoski v. Countrywide Home Loans, Inc., asks whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held; or whether the borrower must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

This case is easier to predict. The Court asked the Petitioner (Jesinoski) 18 questions, the Solicitor General supporting the Petitioner 8 questions, and the Respondent (Countrywide Homes Loans) 36 questions. The total question count suggests a win for the Petitioner, who argued that a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction.

If you break down the questions asked by Justice, the tally also favors the Petitioner. Five Justices (Roberts, Scalia, Ginsburg, Breyer, and Kagan) asked the Petitioner’s side (including the SG) fewer questions, although Roberts, Ginsburg, and Kagan asked just one fewer question. Also significant is the fact that Chief Justice Roberts and Justice Breyer asked no questions at all—somewhat a rarity—to Petitioner or the SG supporting Petitioner. Only Justice Alito asked Respondent significantly fewer questions (0 questions to 7 to the Petitioner’s side). The SG’s support is another plus factor for the Petitioner’s position. In short, I predict a victory for the Petitioner.

Figure 2.

Lee - 11.4.14 Jesinoski v Countrywide

 

OT 2014, Predicting the Winners

Predicting the Winners in Zivotofsky v. Kerry and Omnicare v. Laborers District Council

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The Supreme Court heard oral argument in two cases on Monday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Zivotofsky v. Kerry asks whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional, on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

This is a very close call. Petitioner (Zivotofsky) received 51 questions, while the Respondent (Solicitor General) received 46 questions. If you break down the questions asked by Justice, 3 Justices (Roberts, Scalia, and Alito) asked the Petitioner fewer questions, and 4 Justices (Kennedy, Breyer, Sotomayor, and Kagan) asked the Solicitor General fewer questions. Justice Ginsburg asked both sides an equal number of questions. Justice Thomas asked no questions. Given the conservative and liberal alignment of Justices in the question count, the key in this case appears to be Justice Kennedy. My confidence level is not high in predicting Kennedy’s vote based on the question count. He asked only one question more of the Petitioner, and his prior questioning in other cases does not correspond as well to the predicted pattern of outcomes based on question counts. Nonetheless, if I had to choose, my predicted winner is the Respondent (Solicitor General).

Figure 1.

Lee - 11.3.14 zivotofsky v kerry

The second case, Omnicare v. Laborers District Council, asks whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or whether the plaintiff must also allege that the statement was subjectively false—requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held.

This case is also very hard to predict. The Court asked the Petitioner (Omnicare) 31 questions, Respondent (Laborers District Council) 21 questions, and the Solicitor General supporting Respondent 12 questions. Thus, the questions per side were fairly balanced (31 to 33 questions). If you break down the questions asked by Justice, the tally does not reveal much. Justices Ginsburg, Breyer, and Kagan asked the Petitioner’s side (including the SG) more questions (4, 5, and 4 more questions, respectively). Justices Alito and Sotomayor asked the Respondent’s side more questions (10 and 5 more questions, respectively). Chief Justice Roberts asked the Respondent’s side two more questions, whereas Justice Scalia asked the Petitioner two more questions. Justice Kennedy asked one question each to the Petitioner and to the SG. The SG’s support is a plus factor for the Respondent’s position, but I find the case too close to call based on just the question count.

Figure 2.

Lee - 11.3.14 omnicare v laborers

History of the Court, OT 2014

Measuring the Supreme Court

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How does one measure the overall performance of the Supreme Court? This problem is at the heart of Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky’s basic argument is that, when measured over the course of American history, the Supreme Court has done more harm than good. When faced with “its most important tasks, at its most important moments,” the Court has, more often than not, failed to serve the American people. This is a provocative claim, and it deserves serious consideration. Whether one accepts the claim, however, will likely depend on whether one accepts a series of assumptions on which it is based. They include: that it is even possible to measure Court rulings in this sort of net-benefit-to-society way; that Chemerinsky chooses the correct metrics in determining whether a particular Court ruling belongs in the failure or success column; and that Chemerinsky’s overall tally of Court failures and successes supports his larger claim that the Court has been, on balance, a failure.

These are big questions, each deserving lengthy exploration. I will only be able to touch on them briefly in this post. First, how does one even begin to measure whether a given Court opinion was a good thing or not? It is hard enough to establish any sort of objective measure of the written opinion itself. (More on this in a moment.) But add to this the difficulty of assessing the way Court rulings operate in society and the problem becomes frightfully complicated. Bad rulings can have the effect of mobilizing opposition movements that have benefits for society. (E.g., Bowers v. Hardwick, which helped mobilize gay rights activists.) Good rulings can incite backlash movements that have costs for society. (Brown is the obvious example here.) And then there are the unexpected consequences of practically all major Court rulings—the good, the bad, and the mixed. (Read the late William Stuntz’s brilliant writing on the effects of the Warren Court’s criminal justice revolution and you’ll get a sense of the dilemma here.) All of this is to say that measuring something as complicated as a Supreme Court ruling is an astoundingly difficult task, one that demands not only an assessment of the written opinion but also of the complex, often unanticipated effects of a given Court ruling in society.

What about the particular metrics Chemerinsky uses to assess major Supreme Court rulings? Two points are worth noting here. One is that Chemerinsky focuses his analysis mostly on written opinions. He generally assumes that social effects can be extrapolated from the opinions themselves. The book does not give much space to the complexities unearthed by generations of judicial impact scholarship. This is, I believe, a significant shortcoming of the book. But it is also an understandable choice in a book written by a scholar whose expertise lies predominantly in the area of constitutional doctrine, not socio-legal scholarship, and whose primary goal is to provoke debate. (The basic conclusion found in most judicial impact scholarship is that the effects of bad cases are never quite as bad as feared, while the effects of good cases are never quite as good as hoped. Thus, this scholarship would largely work to undermine or at least weaken the simplicity and boldness of Chemerinsky’s case against the Court.)

The other complication—one that Chemerinsky recognizes but does not resolve—is the difficulty, and perhaps the impossibility, of locating criteria by which to measure whether a Court decision was a success or failure that does not just reduce to the ideological commitments of the author. Chemerinsky tries to negotiate this problem by emphasizing those decisions that have been universally praised or condemned. These are the decisions that reside in either the canon or “anticanon” of Supreme Court jurisprudence: Brown, West Virginia v. Barnette, Gideon v. Wainwright, Reynolds v. Sims, on the one side; Dred Scott, Plessy, Lochner, Buck v. Bell, Korematsu, on the other. But even if these categorizations are accepted (certainly not all would agree on this point), Chemerinsky does not confine his analysis to these canonical and anticanonical cases. After all, these cases constitute only a small minority of the Court’s decisions. To make his case against the Court, he compiles a list of successes and failures that includes much more controversial categorizations, placing rulings whose merits are still quite contested—such as recent Court decisions involving affirmative action or the scope of congressional power—into either the failure or success columns. And despite his protestations to the contrary, Chemerinsky’s assessments follow predictable lines: decisions favored by liberals are successes, those favored by conservatives, failures.

Finally, once one settles on a way to define success and failure for the Court, how does one compare them? Does Dred Scott plus Brown equal success, failure, or a wash? Bad decisions that upheld bad policy (such as Plessy or Korematsu) do not provide the same evidence in the case against the Court as bad decisions that overturned good policy (e.g., Dred Scott, Lochner). Similarly, good decisions that upheld good policy (e.g., West Coast Hotel, Heart of Atlanta) do not add the same value for Chemerinsky’s purposes as good decisions that strike down bad policy (e.g., Barnette, Brown, Gideon).

All of this is to say that Chemerinsky’s book is a great conversation starter. In the end, I found the questions underlying the eye-catching thesis more interesting than the thesis itself. Regardless of whether one agrees with Chemerinsky that the Court has failed more often than it has succeeded, it is fascinating just to think through the challenges of assessing the Court’s performance over its more than two centuries of history.