Predicting the Winner in McFadden v. US

The Supreme Court heard oral argument in one case on Tuesday, McFadden v. U.S., which asks whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar” to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.  I predict a victory for the Petitioner.


As Figure 1 indicates, the total question count slightly favors the Petitioner (McFadden). The Court asked the Respondent (Solicitor General) 6 more questions.  Likewise, the count by individual Justice slightly favors the Respondent. Five Justices asked the SG more questions: Roberts (+5), Ginsburg (+2), Breyer (+9), Alito (+4), and Sotomayor (+2).  Three Justices asked the Petitioner more questions: Scalia (+9), Kennedy (+4), and Kagan (+3).

Although the differences are slight, I’ll go with the Petitioner for the win.

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