Nielsen v. Preap forecast: Kavanaugh shows his colors and they are bright red

On a major issue for the Trump administration, Kavanaugh signals he will be loyal

At oral argument in Nielsen v. Preap last week, the Supreme Court considered whether non-citizens released from criminal custody should be subject to mandatory detention when the Department of Homeland Security fails to take them into custody immediately. Coming on only his second day on the Bench, the natural question is: how did Justice Kavanaugh behave, and what does it tell us of his likely vote in the case? Given the Trump administration’s crackdown on illegal immigrants, Nielsen v. Preap presented Kavanaugh with his first opportunity to repay those who stood by him in the face of allegations of sexual misconduct, lack of candor, and an injudicious temperament.

After his confirmation hearings, many expressed concern that Kavanaugh could not be impartial, given the arguably unjudicial anger he expressed, with even the nonpartisan ABA reconsidering its review of him based on concerns about his temperament. In response, Kavanaugh said that he could be impartial. It is difficult to infer how the nomination hearings have affected Kavanaugh because he was always expected to be both conservative and partisan. But whether the cause is ideological alignment, inherent partisanship, or indebtedness and resentment in response to the nomination process, our empirical analysis of the Preap oral argument suggests that Kavanaugh will be loyal to the Republicans. The following figure shows the disagreement gap—the differential between a justice’s treatment of the side he or she ultimately votes with and against—in terms of both justice words and speech episodes in the Preap argument.

United States v. Preap, Disagreement Gap in Speech Events and Words

The disagreement gap is a better predictor for some justices than others. As we noted in a previous post, Justice Gorsuch and Justice Alito have particularly obvious tells in this regard: the more each talks to an advocate, the more likely each is to vote against him or her. The early numbers on Kavanaugh suggest that he will leave Gorsuch and Alito in the dust in this regard. At first in Preap, Kavanaugh seemed to be still finding his feet, with his initial attempts to ask a question thwarted by his colleagues. But once he finally took the floor, he signaled his favor for the Government. He had as much to say to the respondents as anyone—Gorsuch and Kavanaugh both had 13 speech events directed at the Respondents—and he had the highest disagreement gap, with nothing at all to say to appellants. The extreme tilt in his participation on this issue and the proportion of his questions and non-questions (a 5:11 ratio, if you were curious), as well as their content, suggest he is a safe vote for the government and for the Trump administration’s immigration policies.

The rest of the Court

As for the rest of the Court in Preap, the split was fairly predictable, with the liberals strongly supporting the Respondent immigrants and the conservatives showing equal support for the government. On a highly polarized Court, the biggest surprise is the ambiguous signals from Justice Ginsburg.

The issue presented is one of statutory interpretation, since the statute refers to detention “when” the person is released; however, with some of the non-citizens represented in this case having been free for years, one for 11 years, the liberal side of the Court could not help querying whether a constitutional claim also arose (much to the annoyance of Justice Alito). As the figures above show, however, this strategy is unlikely to be successful. We predict a 5:4 win for the government, falling along standard ideological lines (as one of us predicted on CBS on Tuesday, prior to the argument).

The Advocates

The performance of the advocates in Preap is worth noting. Assistant Solicitor General, Zachary D. Tripp, was unusually weak for that office. He struggled to answer basic questions, such as where the government draws authority to detain non-arrestees and whether the same rule would apply to somebody 50 years past attention rather than 11 years. He also interrupted and spoke over the justices an extraordinary 23 times. In contrast, advocate for Respondents, Cecillia D. Wang, began exceptionally strongly, speaking for 4 minutes and 15 seconds before any Justice asked her a question. She was interrupted only 28 times, compared to Tripp’s 52 times, another sign of strength, and she interrupted only 8 times (these were mostly cross-talk).

However, Wang struggled a little later in her argument, repeatedly insisting that the statute’s use of the term “when” a person is detained necessarily requires that detention be initiated on the same day as release from arrest. That strict timetable clearly alarmed the pragmatists on the Court, both left and right. Instead, she should have responded that 24 hours would be the ideal rule, but no matter what the rule, 11 years is clearly unreasonable. Perhaps having had such a perfect beginning, she was shooting for the moon, but in the process she may have lost any chance she had to bring on board the conservative pragmatists, Chief Justice Roberts and Justice Alito.

Justice Gorsuch attempted to flex his formalist muscles, debating Wang on questions of grammar, but it is foolish to think that formalism can decide this question. The term “when” is inevitably context dependent: the time constraint implicit in the command “make the tea when the kettle boils” raises a very different expectation than the instruction “come visit when you are in town.” The government would have the Court believe that tea can be made with water boiled 11 years previously.

Beyond Preap: Kavanaugh’s first week on the Court

Considering all four cases the Court heard in Kavanaugh’s first week on the Bench, the newest justice may not be ideologically moderate, but so far he has been moderate in his behavior, in some senses. As seen on the figure below, on average this week, Kavanaugh talked slightly less than the median level among the justices and interrupted at the median. We saw the same trend in the Preap case.

Kavanaugh’s first week, by the numbers

However, these numbers might conflict with the subjective experience of listening to the oral argument because Kavanaugh barely spoke at all in Air And Liquid Systems v Devries and spoke only to one side in both Preap and in United States v. Stitt. It was only in Stokeling v. United States that Kavanaugh had a significant amount to say to both sides of the argument. It seems likely that when Kavanaugh settles in to the Court he will become even more vocal, and it would not be surprising to see him continue to strongly favor one side in any given case. We also expect that Kavanaugh will interrupt even more in the weeks and years to come.

Prediction: 5:4 for the government

For the government (Petitioner): Kavanaugh, Gorsuch, Thomas, Roberts, Alito

For Preap (Respondent): Kagan, Sotomayor, Breyer, Ginsburg

Likely to switch: none