Predicting the Winners in Mellouli v. Holder and Wellness Int’l Network v. Sharif

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. For more about this method and all of my predictions this Term, click here.  I found both of today’s cases difficult to predict.

Mellouli v. Holder asks whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

This is a difficult case to predict. As Figure 1 shows, the total question count favors the Respondent (Solicitor General), who received 5 fewer questions (a modest question differential). But, in this case, I’m predicting a victory for the Petitioner (Mellouli) based on the greater number of Justices with a higher question differential favoring the Petitioner.

Figure 1.

Slide1

Two Justices appear to be clearly leaning toward opposite sides. Justice Alito asked the Petitioner 15 more questions, which suggests a strong leaning to the Respondent.   On the other hand, Justice Sotomayor asked 11 more questions to the Respondent, which suggests a strong leaning to the Petitioner.

One reason I am going against the total question count is that Justices Alito and Sotomayor asked 17  questions to  the Petitioner and the Respondent, respectively.  Alito’s 17 questions represents 35% of the questions asked to the Petitioner and he only asked 2 questions to the Respondent (whereas Sotomayor asked 6 questions to the Petitioner).  Thus, Justice Alito was effectively responsible for the difference in the total number of questions between the parties–which makes me less confident in making a prediction based on just the total question count.

I have a little more confidence in basing my prediction on the higher question count differentials  by Justice, which favor the Petitioner.  Justices Kennedy and Thomas asked no questions. The other Justices had question differentials that were more modest.

Justices Scalia (+2), Ginsburg (+6), and Breyer (+1) asked more questions to the Petitioner, but the differential was very small for Scalia and Breyer. By contrast, Chief Justice Roberts (+4) and Kagan (+4) asked the Respondent more questions. I have more confidence in basing my prediction on the 4-question differential of Roberts and Kagan, who, combined with Justice Sotomayor, would give 3 Justices leaning toward the Petitioner. On the other side, Justice Alito appears to be solidly leaning to the Respondent, but I am not sure Justice Ginsburg is leaning the same way that her 6-question differential suggests.  Even if she is, that’s 2 Justices versus the 3 Justices who may be leaning the other way.  Of course, 3 Justices does not equal a majority, but I like the trend it suggests.  In sum, I’m predicting a win for the Petitioner (Mellouli).

The second case, Wellness International Network, Limited v. Sharif, asks (1) whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

This is another difficult case to predict, in part because the Solicitor General’s participation as amicus curiae supporting the Petitioner presents an asymmetrical situation with 2 lawyers arguing on one side and 1 lawyer arguing on the other side in the same amount of time. Given the asymmetry, I don’t like simply comparing the number of questions to the Petitioner versus the Respondent. Moreover, simply adding the questions to the Solicitor General to the side that it supported does not seem entirely satisfactory either, given that the Court may want the SG’s view on some of the same questions it asked the side the SG is supporting (thus inflating the question count somewhat for that side).

Another confounding factor in this case is that the most of Justices asked the parties close to the same number of questions if you look at the question count per Justice.  I was more confident in predicting yesterday’s Kellogg Brown case (another asymmetrical case) based on the larger question differentials of some of the Justices and the fact that the Justices asked the Petitioner there fewer questions in 30 minutes than it asked the Respondent in just 20 minutes.

I wish I had a better handle on this case, but the numbers don’t seem to lean that much one way or the other.  I plan on studying more these asymmetrical cases and the results.  This case is a toss-up to me based on the question counts (both total and by individual Justice), but I’ll go with the Petitioner (Wellness International).

Figure 2.

Slide2

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