Predicting the Winners in EEOC v. Abercrombie & Fitch and Baker Botts v. ASARCO

The Supreme Court heard two oral arguments on Wednesday.  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 first case, EEOC v. Abercrombie & Fitch, asks whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Figure 1.


As Figure 1 shows, the total question count favors the Petitioner (Solicitor General for the EEOC): the SG received 43 questions, while the Respondent (Abercrombie) received 48 questions.

The question count by Justice indicates a split along ideological lines.  The 4 liberal Justices asked Abercrombie more questions, which favors the SG: Ginsburg (+8), Breyer (+9), Sotomayor (+6), and Kagan (+1).  Three of the conservative Justices asked the SG more questions: Roberts (+3), Scalia (+15) and Kennedy (+5).

Justice Alito appears to be the key vote.  Departing from the conservatives, he asked the Respondent 4 more questions, which at least suggests a possible leaning to the SG’s position.  It would be a little surprising to have a block of Justice Alito and the four liberal Justices.  But, based on both the total question count and question count by individual Justice, I’ll go with a victory for the EEOC (SG), which sought a reversal of the Tenth Circuit’s decision.

The second case, Baker Botts LLP v. ASARCO, LLC, asks whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.

Figure 2.


As Figure 2 shows, the total question count favors the Respondent ASARCO: the Petitioner’s side received 49 questions (Petitioner Baker Botts received 28 questions, the SG as amicus curiae supporting Petitioner received 21 questions), while the Respondent received 30 questions.  The 19 more questions to the Petitioner’s side is a large difference, even when discounting for the fact that the Petitioner’s side had two attorneys (which may inflate somewhat the number of questions for that side).  Unless the Justices were just tired in asking the Respondent questions as the last advocate in the last oral argument for the month of February, their relative lack of questions for the Respondent (30 questions is a small amount, below the mean for oral argument) seems to bode well for that side.  I’ll go with a win for the Respondent (ASARCO).



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