The Supreme Court heard two oral arguments on Tuesday. I’m predicting the winners based on the method of counting the number of questions. After 18 decisions handed down, my predictions have been correct 66.7% of the time, which means I have fallen off after going 100% correct in the first 6 decisions.

The first case, City of Los Angeles v. Patel, asks (1) whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

The Court was extremely hot in questioning the advocates in the first case.  By my count, the Court asked a total of 134 questions–which I believe is a record for this Term.

Figure 1.

As Figure 1 indicates, the total question count favors the Petitioner (City of Los Angeles), whose side (along with the SG as amicus supporting it) received 59 questions, 16 fewer than the Respondent (Patel).

The question count by individual Justice is not as clear this time around, given that Justice Breyer apparently asked no questions (or was recused or absent–I cannot tell).  The conservative Justices appeared to favor the Petitioner, asking more questions to the Respondent: Chief Justice Roberts (+14), and Justices Scalia (+3), Kennedy (+1), Alito (+16).    Justice Kennedy’s differential was only 1 question, though. Curiously, Justice Ginsburg also asked the Respondent more questions (+6).   Two liberal Justices asked the Petitioner more questions: Justices Sotomayor (+16) and Kagan (+8).

Based on these numbers,  it looks like an ideological split.  I will predict a victory for the Petitioner (City of Los Angeles).

The second case, Davis v. Ayala, asks whether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.

After the first case, the Court may have been tired in asking questions.  Justice Ginsburg, along with Justice Thomas, asked no questions.  Justice Breyer asked no questions as well, but he may not have been at the oral argument (since he asked no questions in the first case).  The Court asked a total of 72 questions, which is nearly half the amount it asked in the first case (and even 3 questions fewer than it asked the Respondent alone in that case!).

Figure 2.

As Figure 2 indicates, the total question count favors the Respondent (Ayala).  The Court asked the Petitioner 43 questions, 14 more than it asked the Respondent.  The question count by Justice is less interesting because only 6 Justices asked questions.  Four Justices (Scalia, Alito, Sotomayor,  and Kagan) asked the Petitioner more questions.  Two Justices (Roberts and Kennedy) asked the Respondent more questions.  Based on these numbers, I will go with a victory for the Respondent (Ayala).

The Supreme Court heard two oral arguments on Monday. 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.  Both of today’s cases are very close.

The first case, Arizona Legislature v. Arizona Independent Redistricting, asks (1) Whether the Elections Clause of the United States Constitution and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

Figure 1.

As Figure 1 shows, the total question count favors the Appellee (Arizona Independent Redistricting), whose side (along with amicus Solicitor General) received 9 fewer questions than Appellant (Arizona Legislature).

However, the question count by individual Justice paints a very close case.  Four Justices asked the Appellant more questions: Justices Kennedy (+7), Ginsburg (+2), Sotomayor (+5), and Kagan (+17).  Justice Kagan’s unusually high number of questions was effectively responsible for the difference in the number of questions between the two sides.  Four Justices asked the Appellee’s side more questions: Chief Justice Roberts (+7), and Justices Scalia (+9), Breyer (+2), and Alito (+3).  Interestingly, Justice Kennedy asked the Appellant seven more questions, similar to  three liberal Justices, while Justice Breyer asked a couple more questions to the Appellee’s side similar to three conservative Justices.

To me, this case is a toss-up on the question count.  I’ll go with the Appellant (Arizona Legislature) based on the possible conservative line-up and the difficulty of predicting Justice Kennedy based on his question count.

The second case, Ohio v. Darius Clark, asks (1) Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Figure 2.

As Figure 2 shows, the total question count slightly favors the side of the Petitioner (Ohio), which (along with the SG supporting Petitioner), was asked 5 fewer questions than the Respondent (Darius Clark).

The question count by individual Justice presents another close case.  Four Justices asked Petitioner’s side more questions: Chief Justice Roberts (+3), and Justices Scalia (+7), Kennedy (+1), and Kagan (+3).  Four Justices asked the Respondent more questions: Justice Ginsburg (+3), Breyer (+1), Alito (+7), and Sotomayor (+8).

Again, this case is a toss-up based on the question count.  I’ll go with Respondent (Clark), but I’m not confident in the prediction.  Justice Kennedy asked only 1 more question to the Petitioner’s side, and I’m not sure the division will be along ideological lines.

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.

Figure 1.

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.

Figure 2.

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).