Predicting the Winners in Kerry v. Din and Coleman v. Tollefson

On Monday, the Supreme Court heard oral argument in two cases.  The Court was somewhat light in asking questions after several weeks off from oral argument. I’m predicting the winners based on the method of counting the number of questions.  After going a perfect 6 for 6 in calling the first decisions handed down, I had a rocky month of January and am now 9 for 14 (64%) in my predictions.  That’s not a great percentage.  Let’s hope I can turn things around, but the Court hasn’t made things easy for me this Term.  Today’s cases are no exceptions.

The first case, Kerry v. Din asks: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Figure 1.


As Figure 1 shows, the total question count was pretty even: 44 questions for the Petitioner Solicitor General and 47 questions for the Respondent (Din).  The lower question count slightly favors the SG, but the difference is modest.  Part of the disparity arose from Chief Justice Roberts asking 12 questions to the Respondent and none to the Petitioner.   Five Justices, in fact, asked the Petitioner more questions: Kennedy (+2), Ginsburg (+2), Breyer (+8), Sotomayer (+3), and Kagan (+1).  Although the differentials (except for Justice Breyer) are also small, they favor the Respondent.   By contrast, Chief Justice Roberts  and Justice Alito appeared strongly leaning to the Petitioner (SG), asking the Respondent 12 and 5 more questions, respectively.  Justice Scalia asked 2 more questions to the Respondent.  Based on the question count, the case is a close call.  But I’ll stick with the overall count, plus the strongest differentials by Justice (Roberts and Alito), which favor the Petitioner (SG).

The second case, Coleman v. Tollefson, asks whether, under the “three strikes” provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

Figure 2.


As Figure 2 shows, the total question count slightly favors the Respondent (Michigan SG): 36 questions to the Petitioner (Coleman) and 33 questions total to the Respondent’s side (21 to the Respondent and 12 to the Solicitor General supporting the Respondent).

The question count by Justice indicates a likely break along ideological lines.  Three conservative Justices (Roberts, Scalia, Alito) asked the Petitioner (Coleman) more questions, suggesting a leaning to the Respondent’s side.  Four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) asked the Respondent’s side more questions.   Appearing to be the swing vote, Justice Kennedy asked both sides 3 questions.

So the case is a toss-up.  But I’ll go with the small lower total question count and say a victory for the Respondent (Michigan SG).

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