Predicting the Winners in Zivotofsky v. Kerry and Omnicare v. Laborers District Council

The Supreme Court heard oral argument in two cases on Monday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Zivotofsky v. Kerry asks whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional, on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

This is a very close call. Petitioner (Zivotofsky) received 51 questions, while the Respondent (Solicitor General) received 46 questions. If you break down the questions asked by Justice, 3 Justices (Roberts, Scalia, and Alito) asked the Petitioner fewer questions, and 4 Justices (Kennedy, Breyer, Sotomayor, and Kagan) asked the Solicitor General fewer questions. Justice Ginsburg asked both sides an equal number of questions. Justice Thomas asked no questions. Given the conservative and liberal alignment of Justices in the question count, the key in this case appears to be Justice Kennedy. My confidence level is not high in predicting Kennedy’s vote based on the question count. He asked only one question more of the Petitioner, and his prior questioning in other cases does not correspond as well to the predicted pattern of outcomes based on question counts. Nonetheless, if I had to choose, my predicted winner is the Respondent (Solicitor General).

Figure 1.

Lee - 11.3.14 zivotofsky v kerry

The second case, Omnicare v. Laborers District Council, asks whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or whether the plaintiff must also allege that the statement was subjectively false—requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held.

This case is also very hard to predict. The Court asked the Petitioner (Omnicare) 31 questions, Respondent (Laborers District Council) 21 questions, and the Solicitor General supporting Respondent 12 questions. Thus, the questions per side were fairly balanced (31 to 33 questions). If you break down the questions asked by Justice, the tally does not reveal much. Justices Ginsburg, Breyer, and Kagan asked the Petitioner’s side (including the SG) more questions (4, 5, and 4 more questions, respectively). Justices Alito and Sotomayor asked the Respondent’s side more questions (10 and 5 more questions, respectively). Chief Justice Roberts asked the Respondent’s side two more questions, whereas Justice Scalia asked the Petitioner two more questions. Justice Kennedy asked one question each to the Petitioner and to the SG. The SG’s support is a plus factor for the Respondent’s position, but I find the case too close to call based on just the question count.

Figure 2.

Lee - 11.3.14 omnicare v laborers

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