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The Supreme Court eats its copyright vegetables

Listening to Tuesday’s argument in Fourth Estate Public Benefit Corp. v. Wall-Street.com, it was striking that most of the justices would rather have been somewhere else, or at least deciding some other case. Maybe a trademark a case (see below)? Ironically, the justice with the most interest in the rights of copyright owners, Justice Ginsburg, was absent from oral argument recovering from surgery. But sometimes, even Supreme Court justices need to eat their vegetables.

Fourth Estate is exactly the kind of case that the Court should take. True enough, the policy issues are not earth shattering, the statutory interpretation issues are a little dull, and the controversy is so copyright-specific that it has no real implications for other areas of law. However, it is ridiculous in a national copyright system that the Fifth and Ninth Circuits allow copyright claimants to file a lawsuit based merely on filing an application for registration, whereas the other circuits require an actual registration or a rejection thereof (i.e., a decision on whether the work is copyrightable). This is a significant difference because the process takes several months on average.

Text likely to win over policy

Oral argument saw Petitioner’s flimsy statutory interpretation and more sympathetic policy position pitted against Respondent’s strong textual argument and less compelling policy stance (discussed in more detail below). If the justices were voting on their policy views alone, this case would probably be 9:0 or 8:1 in favor of Petitioner, but Respondent will be hoping that the law still matters. The tension between law and policy resulted in mostly even handed questioning at oral argument; as a consequence any predictions based on transcript metrics are quite speculative.

Supreme Court Oral Argument Prediction for Fourth Estate Public Benefit Corp. v. Wall-Street.com, January 8, 2019) (summarized in the text)
Supreme Court Oral Argument Prediction for Fourth Estate Public Benefit Corp. v. Wall-Street.com, January 8, 2019)

As the figure above shows, we predict Justices Kagan and Sotomayor, as well as the Chief Justice, to vote with Respondent. Justices Thomas and Alito (both silent during oral argument) will probably join them, as will Justice Breyer. A three-justice minority would not be surprising (based on the argument and Ginsburg’s history of favoring copyright owner interests), but the outcome is more likely to be 9:0 for Respondent (perhaps 8:1 with Ginsburg dissenting).

Ultimately, we predict that in this case at least, a straightforward reading of statute will carry the day.

How clear is the textual argument?

The issue in Fourth Estate is the correct reading of Section 411(a) of the Copyright Act, entitled “Registration and civil infringement actions.”

In simple terms, the most natural reading of the section is that it bars a copyright owner from instituting an infringement action until the Register of Copyrights (i.e., the Copyright Office) has either approved or refused registration. The relevant text of the section consists of three sentences. The first sentence reads:

… no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

The second sentence provides that if “the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused” the applicant may then institute its civil action. The third sentence allows the Register of Copyrights to join in that litigation and defend its refusal.

Petitioner argued heroically that “registration … has been made” means simply that the copyright claimant has submitted an application in proper form to the Copyright Office. This is hard to square with the second sentence that talks about a registration having been refused. Basically, Petitioner wants “registration … has been made” to mean the exact same thing as the following 18 words from the second sentence: “the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form.” This requires the Court to treat the same word, registration, as meaning vastly different things from one sentence to the next; it also asks it to accept that vastly different expressions within the same section mean the same thing. This is both counter-intuitive and anti-canon.

The policy question is not clear-cut

The policy question in Fourth Estate is more finely balanced. Petitioner’s best argument was that being forced to wait several months for a registration to either be granted or denied puts the value of their copyrights at risk and denies them the chance to take swift injunctive action. This clearly scored some points with a few of the justices, particularly Justice Kavanaugh, who demanded a drawn out explanation.

However, Respondent and the Deputy Solicitor General did a good job explaining why such dramatic unfairness was unlikely in view of the availability of preregistration and expedited review (special handling). They also explained how registration as a precondition to litigation plays an important role in encouraging timely registration with the Copyright Office and deposit with the Library of Congress.

Copyright and trademark are not the same

For intellectual property lawyers who are bemused, enraged, or amused by the inability of non-specialists to understand the difference between copyright, trademark, and patent (it is like confusing Star Wars with Star Trek, or Lost In Space), the oral argument provided a couple of triggering exchanges:

John G. Roberts, Jr.
Well, that’s enough assuming that the registrar has registered the mark.
Aaron M. Panner
Again, the registrar does not have to register the mark.
The — the — not the mark, the copyright. …

John G. Roberts, Jr.
  So you could go back, the registrar hasn’t even registered the mark, and you can go into court and say, hey, I get the benefits of having registered my mark?
Aaron M. Panner
  The copyright claim, yes, Your Honor.

Prediction

Petitioner: Sotomayor, Kagan, Roberts, Breyer, Thomas, Alito, Gorsuch, Kavanaugh, Ginsburg
Respondent: none
Most likely to switch: Ginsburg, Kavanaugh, Gorsuch

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The emerging formalist-pragmatist divide on the Supreme Court (Biestek v. Berryhill forecast)

Unheralded case may be emblematic of the Supreme Court’s 2018 Term

Based on the ebb and flow of oral argument in Biestek v. Berryhill, we predict a formalist-pragmatist division between the justices, rather than one based upon the usual liberal-conservative fault lines.

Biestek was a relatively unheralded and unremarkable case about administrative procedure and the denial of disability benefits. The hearing generated very little press coverage and may have even seemed a little dull to spectators without a keen interest in the outcome or in administrative law. However, for this very reason, Biestek may end up being emblematic of the 2018 Term, a Term in which the Court appears to be trying to stay out of the limelight and avoid the impression that every case is a pre-determined political contest.

The results of our predictive model based on the oral argument transcript are shown in the figure below. The model captures the formalist-pragmatist division as reflected on the opposing views of conservative Justice Gorsuch and equally conservative Justice Alito.

Supreme Court Oral Argument Prediction for Biestek v. Berryhill (December 4, 2018)

However, the model does not capture every nuance of the argument.

“I have evidence, but it’s a secret”

Some additional background helps explain the issues. Biestek applied to the Social Security Administration for Supplemental Social Security Income and benefits in 2010. In a hearing to review the denial of his claim, a vocational expert testified that there were jobs available to Biestek in spite of his disability. The vocational expert based her testimony on private data that she refused to produce. Nonetheless, based on this secret evidence, the Administrative Law Judge (“ALJ”) found there was work available to Biestek and denied his claim.

The Sixth Circuit affirmed on the basis that the strict requirements of the Federal Rules of Evidence do not apply to Social Security disability proceedings. Petitioner acknowledges that the Federal Rules do not apply, but contends that the ALJ’s decision failed the substantial evidence threshold. Thus, the essential question in the case is whether a man should be denied disability benefits when the expert evidence against him is based solely on data that the expert declines to reveal.

Or, as Justice Gorsuch put it: 

If we were in federal district court [and] if on the key issue in the case the evidence depended upon the testimony of an expert, and the expert said, ah, I’m not going to give you my underlying data, it’s secret, I don’t think we would hesitate to find that no rational jury could sustain a verdict in favor of the party propounding that expert. Why isn’t the same true here?

The arguments against the Petitioner are largely pragmatic. As Anthony Yang explained on behalf of the government:

Each year, there are about 2.6 million initial disability claims that are filed with SSA, and at the third level of review, the SSA conducts 670,000 hearings. That’s about 200 — 2500 a day. Over 1 million people are waiting for just a response for their hearing, and they wait, on average, about 605 days. There is no adjudicatory process on a scale comparable to this.

The Chief Justice and Justice Alito did not seem convinced that the secret basis of the vocational expert’s opinion was any great problem. Justice Breyer, on the other hand, had clear reservations about the reliability of the testimony of vocational experts but thought that this issue would be better addressed by a test case of some kind.  

Prediction

The case is hard to predict. Justices Gorsuch, Ginsburg, and Sotomayor seemed clearly inclined to the view that secret evidence was no basis for an administrative decision. However, Justice Kagan raised telling objections on both sides of the argument and Justice Kavanaugh’s limited comments to the Respondent did not contribute much.  

Prediction:

Petitioner: Gorsuch, Ginsburg, Sotomayor, Kavanaugh, Kagan

Respondent: Alito, Roberts, Breyer, Thomas

Most likely to switch: Kavanaugh, Kagan, Breyer

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Timbs forecast: Many roads to incorporation

In Timbs v. Indiana, the Court saw a particularly lopsided oral argument in favor of Petitioner, who argued that the  Eighth Amendment’s excessive fines clause is incorporated against the states under the Due Process Clause of the Fourteenth Amendment (or alternatively, the Privileges and Immunities Clause).

The Supreme Court continues to ignore pressing social issues

There are many reasons why Petitioner Tyson Timbs is a sympathetic litigant, and why his constitutional argument is persuasive. He is the prototypical victim of the opioid epidemic: having become addicted to hydrocodone for foot pain, he took to dealing small amounts of heroin to fund his habit. He used his one considerable asset, a $42,000 SUV bought with money inherited from his father’s $73,000 estate, to drive to the sites of two deals of value $225 and $160. Timbs was convicted and put under house arrest, and subject to fines totaling less than $1000. But the state of Indiana seized his $42,000 SUV as an instrumentality of the crime, subject to in rem forfeiture.

According to Indiana, there is no meaningful limit to stop police directly profiting from seizing cars used in drug crimes, or even cars going 3 miles over the speed limit. According to Timbs, the constitutional guarantee against excessive fines should be incorporated against the states because freedom from excessive fines is “fundamental to our scheme of ordered liberty.” This constitutional protection is vital with respect to fines because, unlike other forms of punishment, fines are particularly prone to abuse as a potential profit center for the state. Furthermore, as Timbs’ brief argues persuasively, such forfeitures have been used for centuries to oppress the poor, perpetuate Jim Crow long after the Civil War, and give problematic police departments, such as that in Ferguson, Missouri, a mechanism of harassing racial minorities.

Yet, as is so often the case in criminal procedure cases, few of these compelling arguments appeared to shape the justices’ inquiries in the case. Only Justice Sotomayor made passing reference to these pressing social concerns.

The real point of interest in the oral argument washow justices from various points on the ideological spectrum seemed to be converging on a decision in favor of Petitioner while maintaining starkly different motivations and reasoning. It was particularly fascinating to see that the differences among the conservative justices and among the liberal justices were more sharply drawn than the distance between the conservative and liberal camps.

A variety of ways of getting to a new state constitutional right

Among the conservatives, Justice Gorsuch and Justice Kavanaugh seemed to be competing as to who would come out swinging most against the state. Kavanaugh repeatedly asked a version of the question “aren’t all –all the Bill of Rights at this point . . . incorporated?” Gorsuch clearly won,however, immediately jumping into a 138 word monologue, demanding that Respondent advocate “at least agree” that the Excessive Fines Clause is incorporated against the states, and subsequently goading the advocate, asking if he “really wants” the Court to address a secondary question.

In contrast, Chief Justice Roberts and Justice Alito pushed hard against Petitioner’s argument, questioning whether any fine can be excessive in comparison to prison time. The figure below reflects this division, with Roberts and Alito favoring Respondent. However, there is reason to think that they may not vote that way: for institutional reasons, the Chief is unlikely to want to be on the losing side of a case recognizing a constitutional right. Also, by the end of the argument even Alito seemed troubled by the implication of Respondent’s position that individuals pursuing Second Amendment rights would have to establish each aspect of the right bothat the federal and state level.

ScotusOA Predictive Model for Timbs v. Indiana

Model predictions for Timbs versus Indiana showing votes likely in favor of Petitioner and respondent. Ranging from Gorsuch 95% Petitioner to Roberts 93% Respondent.
Supreme Court Oral Argument Prediction for Timbs v. Indiana (November 28, 2018)

There was also division among the liberal justices,but over the reasons for and extent of support for Petitioner. As mentioned,Sotomayor did consider the practical reality of civil and criminal forfeiture;Justice Kagan, in contrast, repeatedly raised a question of great interest only to constitutional scholars: at what level of generality should a constitutional right be recognized? Justice Breyer raised strong institutional concerns with Petitioner’s position,particularly regarding the role of stare decisis and the logical conundrum of protecting against excessive fines given the lack of a meaningful proportionality requirement in sentencing. In contrast, Justice Ginsburg so clearly came to the aid of Petitioner’s advocate, Wesley Hottot, that he subsequently committed the faux pas of referring to her as having “assisted”him earlier. Based solely on the oral argument, one might think Breyer was a vote for Respondent, but although he was clearly weighing some broader institutional issues, our reading of Breyer’s constitutional theory leads us to the opposite conclusion. Breyer’s congenial verbosity makes him harder to predict than many of the other justices.

Unanimous and lopsided votes are difficult to predict

Thus, while the numbers show a 5:3 split in favor of Petitioner, we expect that the case will be much more lopsided, perhaps even unanimous, since even ultra-conservative, ever-silent Justice Thomas called for the Court to hear the issue. Very lopsided and especially unanimous cases are harder to predict on the numbers from oral argument: even if the justices all expect to vote in favor of one side, we would still expect them to talk during that advocate’s time, since modern norms of Supreme Court oral argument involve a lot of justice speech. This makes the numbers less reliable in lopsided cases, showing the importance of both qualitative and quantitative analysis. We do, however think that the figure reflects a real division between the justices, particularly between the Chief and Alito versus the rest of the Court. This division just may not be reflected in the final votes. We expect that either Roberts and/or Alito will vote for Petitioner on the question presented but  write a narrowing concurrence.

Prediction: 8:1 or 9:0 for Petitioner, Timbs

Most likely to switch: Alito

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Visualizing the content of justices’ and advocates’ cross-references

In our previous two posts (this one and this one), we examined the implications of justices cross-referencing other justices at oral argument. In this post, we take the analysis a step further and focus on the content of those cross-references.

The figure below is a word cloud derived from every sentence in the Supreme Court oral argument transcripts from the 1985 to the 2017 Terms in which one justice refers to another sitting justice by name. (We also treated references to “the chief” and “the Chief Justice” as a reference to Rehnquist or Roberts, depending on the era.) The word cloud provides a visualization of the relative importance of the 100 most frequent words in that set, excluding common words such as and, the, it, to, …

Supreme Court Oral Argument, 1985 – 2017 Terms: Justice cross-reference word cloud 

Word clouds are the text mining equivalent of a Rorschach test. The frequency of each individual word in a “bag of words” is of course an objective fact; but the significance each viewer gives to that fact depends on his or her expectations. Our interpretation of the word cloud above is that when justices are referring back to other justices in the modern era, they are overwhelmingly attempting to go back to a specific question raised by that justice. “Question” is the dominant token in this word cloud, occurring more than twice as often as the next two tokens, “answer” and “think.” Likewise, “answer” suggests a reference is being made to an earlier question; “think” is more generic.


Supreme Court Oral Argument, 1985 – 2017 Terms: Advocate-justice cross-reference word cloud 

Looking at the same visualization for advocates in the above word cloud, we see questions are still important, but not so clearly dominant. In the advocate word cloud, “question” is only the third ranked token, after “think” and “court.”

Previously, we have shown that the modern era of oral argument is defined more by comments than by questions; we have also shown that questions are more often asked of one’s friends, and comments are put to one’s foes. Finally, we have shown that judicial cross-references are generally made between two justices who ultimately agree with one another in the case at hand. As such, it follows logically that justices’ cross-references tend to focus substantially on fellow justices’ questions. This content analysis further buttresses this prior evidence of the relationship between questions and agreement, comments and disagreement, and judicial cross-references and agreement.

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Cross-referencing one’s friends: A universal pattern among the justices

In our previous post, we showed that when one justice refers to one another by name at oral argument, it usually signals agreement. We also showed the practice of justice name checking each other has increased over time. The next natural question is whether this strategy is one utilized by all of the justices or only a select few. We might expect that there would be significant differences amongst the justices, since previously we observed significant variation in naming patterns among the justices when referring advocates. Do the same patterns emerge when justices use each other’s names?

Which justices cross-reference the most?

To explore these questions, the following table shows the cross-reference tendencies of a selection of justices serving from 1985 to 2017.

Speaker Makes Reference Is Referenced Agreement Ratio
Alito 0.48 1.13 2.60
Breyer 0.78 2.86 2.64
Ginsburg 0.77 1.69 2.77
Gorsuch 2.13 0.05 1.55
Kagan 1.47 0.90 3.46
Kennedy 2.05 1.30 2.71
O’Connor 0.29 2.22 4.05
Rehnquist 0.82 1.04 3.05
Roberts 1.04 1.12 3.22
Scalia 0.57 2.51 2.43
Sotomayor 1.62 0.67 3.41
Souter 1.47 0.53 3.02
Stevens 0.88 1.54 1.62
Thomas 0.76 0.02 3.00

The first column of the table above shows the rate per thousand words by which each justice references another justice. The results are very different for which justices cross-reference their colleagues than the advocates. Justices Gorsuch, Kennedy, Sotomayor, Souter, Kagan, and Chief Justice Roberts lead the pack in naming their brethren more than once per thousand words. In contrast, when using the names of advocates, Kagan, Rehnquist, Ginsburg, Scalia, and O’Connor make up the top 5. Only Kagan is on both top referencer lists. Kennedy, second only to Gorsuch in judicial cross-references, was barely discernible when measuring the use of advocates’ names. Clearly, then, using names serves a very different function when the justices are referring to colleagues than when referring to advocates.

Which justices are referenced most often?

The second column shows the tendency of each justice to be referred to by another justice. Some interesting patterns emerge here, too. First, Breyer and Scalia are way ahead of the others on this dimension. This could be because, as one of us (Jacobi) has argued elsewhere, their ideological and methodological distance led to such intense disagreements that their mutual interruptions dwarfed any others between any judicial pair. If that is what is driving these two justices’ high rates of cross-references, it would suggest that sometimes cross-references do indicate disagreement. However, it is also possible that these two justices constitute the contrasting personifications of not only liberal and conservative ideology but also of their methodologies, since Breyer and Scalia have each written influential books on their very contrasting constitutional views.

In fact, the data supports both of these interpretations. With 235 cross-references, Breyer referenced Scalia far more than he referenced any other justice—other conservatives, such as Alito and Roberts, were referenced by Breyer only 77 and 26 times, respectively (although they served with Breyer for less time). Similarly, Scalia most often referenced Breyer, with 182 references; in contrast, he referenced Ginsburg only 94 times, despite serving one year longer with her, and referenced Stevens 116 times, while serving even longer with him. Scalia and Breyer were exceptionally focused on each other, and seldom for reasons of agreement.

Yet, unlike with interruptions, Scalia and Breyer did not leave the other justices in their wakes. Kennedy was an active and bipartisan cross-referencer, invoking Roberts 239 times, Ginsburg 204 times, Breyer 201 times and Scalia 239 times. Other high pairings were Stevens referencing Scalia, at 225 times, Souter referencing Scalia, at 247 times, and Souter referencing Breyer, at 227 times. Significantly, though, Kennedy’s references to Ginsburg and Roberts were the only instances of any justice other than Breyer or Scalia being referenced more than 200 times by any other justice. Scalia and Breyer were exceptional not only in referencing each other, but in being referenced by others. As such, this supports the idea that these two justices’ high reference rates are a sign of their influence, even more so than the medians on the Court during this time, Kennedy and O’Connor.

The universality of cross-referencing one’s friends

The third column shows what we call “the agreement ratio”—the rate at which a justice is referenced (column 1) where that justice and the referencing justice are in agreement versus where they disagree (it does not relate to column 2). This is the most striking result: every single justice, even Justice Thomas, who talks so infrequently, displays the same trend, of cross-referencing other justices with whom the justice eventually will agree in the case in which they make the cross-reference. Once again, then, we have a potentially powerful predictor of eventual outcomes in Supreme Court cases, stemming from in-depth analysis of what happens in the oral argument of any given case.

Altogether, we can see that all of the contemporary justices cross reference each other overwhelmingly when they are in agreement. But the consistency only applies to doing the referencing: when it comes to being referenced, there are tiers of influence among the justices. The justices cross-reference selectively, particularly cross-referencing Justices Breyer and Scalia, two of the leading thinkers on the contemporary Court of their respective ideologies and methodologies.

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What does it mean when justices reference each other at oral argument?

What’s in a name?

Previously, we showed that justices often refer to advocates by name as a form of “throat clearing,” that is, using prefatory words to ease into interrupting an advocate. Since interruptions are highly predictive of justices voting against the person they interrupt, that may suggest justices use of an advocate’s name is likely to signal disagreement. Is the pattern the same when justices use each other’s names? There is reason to think not: the justices may refer to each when they want an advocate to return to a question of shared interest. In this post, we begin to explore the phenomena of justice-to-justice name checking and conclude that, although there is significant variation between justices and over time, the practice is highly correlated with, and predictive of, agreement among the justices.

Judicial cross-references over time

As we have shown elsewhere, oral argument has changed significantly in recent decades, so the first natural question is whether judicial cross-references have changed also. The following figure shows a distinct shift in the practice of justice-to-justice name-checking over time. The figure shows the rate of justices referring to each other by name at oral argument from the 1985 to 2017 Terms, normalized per thousand words spoken by the justices.

Justices Naming Other Justices at Supreme Court Oral Argument (1985-2017 Terms)

It is important to normalize figures by word count in order to adjust for the fact that the justices talk more during oral argument than they used to. In the mid-1990s, the justices began to play a far more active role in oral argument; the justices now talk for about 13 minutes more in the course of a 60-minute proceeding than they did in the pre-1995 era. . Yet even controlling for that enormous upward shift in judicial verbosity, justices referring to each other by name has measurably increased over the last 30 years. Since 2007, the rate of justice-to-justice name checking has been consistently above one per thousand words. Given the competitive cut and thrust of oral argument, that makes name-checking a significant part of the dialogue among the justices.

Why the increase has occurred is a matter of interpretation. At least part of the cause is likely to be a response to the other dramatic changes we have observed in oral argument, in particular the significant increase in judicial activity at oral argument. With justices talking so much more and interrupting each other and the advocates more often, and the advocates interrupting back at greater rates, it is easy to have questions go unanswered or partially answered. As such, we would expect justices to refer back to earlier questions that they want to hear the answer to.

That raises the associated question of when the justices refer back to each other’s questions. If the above interpretation is correct, it suggests that Justice A will be refer to Justice B when he or she wants an advocate to complete a previously disrupted answer to Justice B’s question. That in turn suggests that cross-references will occur among justices who are likely to agree rather than to disagree.

The relationship between agreement and justice-to-justice name checking

The following figure explores that agreement-based intuition. It shows the rate of judicial cross-references, once again normalized per thousand words spoken by the justices, but this time divided among whether the cross-references occur between justices who ultimately vote together, or those who ultimately disagree, in the case at hand.

Justices Naming Other Justices at Supreme Court Oral Argument (1985-2017 Terms) (Agree, Disagree)

The results support the interpretation above: justices cross reference each other about three times as often when they will ultimately agree with the person they are cross-referencing than when with they will ultimately disagree. This means that whereas we have a “disagreement gap” for justices interrupting advocates, we have an “agreement gap” between justices cross-referencing each other. (Note we could also develop a disagreement gap between justices, as Jacobi and Rozema’s research shows interruptions are associated with future disagreement among pairs of justices).

Note also that the very large increase seen in the first figure is primarily being driven by an increase in justices cross-referencing those with whom they agree, rather than among justices who disagree. Put another way, while there has always been a tendency to more often cross reference one’s friends than one’s foes, the difference is considerably increasing in the last three decades. This result suggests that cross-references may be a counter-strategy to the more conflictual strategies we have previously highlighted, particularly of taking up the time of the advocate with whom a justice disagrees. By pointing an advocate back to a question of a future ally, the justice is emphasizing what he or she agrees with, rather than solely what he or she disagrees with.

In a time of increasing partisan division on the Court, mirroring the increased partisan conflict in Congress and among the public, here at least we have a manifestation of agreement rather than disagreement. Of course, agreeing with one’s allies is a form of tribalism, as much as disagreeing with one’s foes, but next week we explore in more detail which justices specifically cross reference which other justices, and the broader implications of such behavioral patterns.

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The importance of empirical analysis (with forecasts of Bucklew & Madison)

The two Eighth Amendment cases show hard cases make for hard predictions

Bad facts make bad law. So too, hard cases make for hard predictions. The Court’s two current death penalty cases, illustrate both phenomena. But these cases also illustrate the added value of empirical analysis of oral argument over purely qualitative or impressionistic readings.

The Supreme Court’s two current pending death penalty cases both have very peculiar facts. In Bucklew v. Precythe, argued last week, the prisoner argues that execution by lethal injection would be cruel and unusual given his particular medical history. Madison v. Alabama, argued on October 2nd, presents the question of whether a prisoner can be executed for a crime he cannot recall.

The Supreme Court had the option of taking a case raising a question with potentially much broader significance for Eighth Amendment jurisprudence. Hidalgo v. Arizona challenged whether Arizona’s death penalty legislation insufficiently narrowed application of the ultimate punishment. True to form, the Supreme Court avoided that important question of the frequency of the ultimate punishment, and focused instead on two cases raising as applied challenges, with limited applications for the 2,743 people currently on death row.

Forecast of Bucklew v. Precythe

Argument in Bucklew v. Precythe involved delving into the grisly facts of Petitioner’s medical condition and the painful possibilities involved in his execution. Along the way, the argument saw some unusual judicial behavior. Immediately, Justice Sotomayor began grilling Petitioner’s advocate for the lack of a clear record on those facts, and whether the horrific nature of his death could simply be avoided by the trach already installed in his throat.

ScotusOA prediction based on the oral argument in Bucklew v Precythe

Commentators on the First Mondays podcast suggested that this interplay may indicate that Petitioner’s advocate may have lost Justice Sotomayor, which would make it “tough” to win, given her general reliable pro-defendant vote. This much-qualified prediction misunderstands what is going on. Although Sotomayor was very active in questioning the Petitioner, and that level of activity often signals disagreement, she was even more active during Respondent’s time. Sotomayor spoke 17 times to Petitioner and 18 times to Respondent; but when she spoke to Respondent, she had much more to say—921 words versus 497 words. In spite of the opening salvo, by the end of the argument Sotomayor registered a significant disagreement gap in favor of Petitioner. Thus, even though she described herself as “upset” with Petitioner’s advocate, our analysis, represented in the figure below, predicts she is 90% likely to vote for Petitioner, and is the Justice most likely to do so.

Sotomayor normally reserves her toughest questions for the prosecution side in criminal cases—perhaps reflecting, as well as her liberal ideology, that as a former prosecutor herself she has particularly high standards for the profession. That fact made her sharp critique of the capital defendant seem more important than it really was. Our empirical approach to reviewing oral argument helps put episodes like this in a more balanced context and avoid salience bias (a recognized common behavioral irrationality that causes people to focus on prominent information and ignore potentially more significant but less noticeable contra-indicators).

A far clearer signal of a Justice breaking with expectations was Justice Kavanaugh. He spoke only to Respondent’s advocate and asked tough questions as to whether there was any limit on the potentially “gruesome and brutal pain” the state is permitted to impose in executing Bucklew, and demanded a yes or no answer from the state’s advocate.

In contrast, the numbers on Justice Gorsuch are likely misleading. He spoke only twice to Respondent’s advocate and once to Petitioner’s advocate, making his signals very weak. Equally importantly, both questions he put to Respondent’s advocate were open-ended questions asking him to get to a point he had said he would make—that is, a seemingly friendly inquiry. Given Gorsuch voted to deny the stay of execution, we expect he will join the other conservatives in voting with Respondent. (Although Justice Thomas was his normal reticent self, he too had joined the dissent from the stay of execution).

With Justice Ginsburg unusually silent (even before breaking her ribs), we can only go on her prior voting record, which is generally pro-defendant. All of this would lead to a prediction of a 5:4 vote for Petitioner, however the prediction depends on the untested vote of Justice Kavanaugh—a tough prediction, indeed.

Forecast of Madison v. Alabama

Oral argument in Madison v. Alabama, on the question of whether someone who cannot remember the crime he committed due to multiple strokes, also involved descriptions of peculiar facts. According to Petitioner’s advocate, inmate Madison regularly soils himself because he cannot remember that he has a toilet in his cell. The law on the issue was as messy as the facts. The following was a typical confused interaction:

Sonia Sotomayor: Mr. Stevenson, part of the problem is the use of the word “loss of memory.” And I — in your briefs, you seem to go back and forth on this. Are you conceding that amnesia about the incident alone, where you can function in every other way in society, would you be incompetent then?

Bryan A. Stevenson: No.

Sonia Sotomayor: To be executed?

Bryan A. Stevenson: Yes, that’s right.

On another point Justice Alito complained: “No, I don’t understand — I don’t understand your answer.”

And Chief Justice Roberts questioned whether there was an issue at all in the case, saying to Petitioner’s advocate: “There are two questions. You concede on one, and the state concedes on the other.” Petitioner had conceded that simply not remembering the crime is not enough to avoid execution, and the state had admitted that if the person is incompetent, they cannot be executed.

The figure below shows our predictions for the case.

ScotusOA prediction based on the oral argument in Madison v Alabama

Thomas was silent as always and Gorsuch was silent in this case also. Furthermore, both Breyer and Roberts presented ambiguous signals. Again, Thomas, Alito, and Gorsuch had opposed the imposition of the stay, suggesting again support for Respondent. This time, however, Roberts had not joined that order. His far more mixed signal in this argument supports Amy Howe’s prediction that as Chief Justice, he “might have a greater incentive than his colleagues to avoid deadlocking on Madison’s case” (Kavanaugh was not yet on the Court when the case was heard) and so could provide the fifth vote for a very narrow victory for Madison by remanding the case back to state court to consider the specific question of whether Madison is incompetent because of his dementia.

We think this analysis makes sense of Roberts’ tentative signal. But we would go further and say that Roberts will only vote in favor of Petitioner for a very narrow ruling, otherwise he will vote for Respondent. We believe Roberts’ ambiguous signal indicates his concern over the potential for this second very specific medical circumstance to create an enormous slippery slope to a flood of future death penalty challenges. Whereas Bucklew’s case is limited to an n of approximately one, making it hard to justify the Court using one of its approximate 75 spots to effectively act as a court of last instance, in contrast, Madison’s case could drastically change death penalty jurisprudence. With death penalty appeals dragging the ordinary execution process out over decades, the chances of other inmates developing memory-related medical issues are very high. A broader ruling for Petitioner could spawn a tide of challenges that would make Atkins IQ challenges seem a narrow set. As such, we expect Roberts to either support a very narrow ruling for Petitioner or rule in favor of Respondent. The empirics indicate he is right on the borderline.

Thus, we predict a 5:3 win for Petitioner on narrow grounds, or a 4:4 default win for Respondent.

 

Prediction for Bucklew: 5:4 vote for Petitioner (Bucklew)

For Petitioner: Sotomayor, Kagan, Breyer, Kavanaugh, Ginsburg

For Respondent: Roberts, Alito, Thomas, Gorsuch

Most likely the switch: Kavanaugh

 

Prediction for Madison:

5:3 vote for Petitioner (Madison) and remand

or

4:4 vote for Respondent (Alabama)

For Petitioner: Sotomayor, Ginsburg, Kagan, Breyer, (Roberts)

For Respondent: Alito, Thomas, Gorsuch, (Roberts)

Most likely to switch: Roberts

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Interruptions among the justices as a predictor of voting disagreement

In a just published article in the Boston College Law Review, Kyle Rozema and I show that interruptions between two justices at oral argument are significantly associated with voting disagreement between pair in the eventual case outcome. We show that on average, a given judicial pair is 7% less likely to vote together in a case where an interruption occurs between them at oral argument. This adds to the mounting evidence that interruptions constitute good predictors of voting outcomes in cases.

Not all justices are alike, but the pattern is clear

Kyle and I show that interruptions at oral argument, as in the many other areas where interruptions have been studied, capture a form of conflict between the justices. Whether interruptions cause ill will or reflect existing conflict, either way they provide a glimpse into otherwise hidden forms of disagreement between members of the Court. Of course, scholars have long recognized regular dividing lines among the justices, most notably ideological divisions, but those factors apply across all cases—we are able to show that interruptions in a given argument reflect an increased probability of disagreement in the case at hand, even accounting for more general ideological division.

The correlation between interruption and disagreement is not the same for all justices. In general a justice is more likely to disagree with someone who has interrupted them or whom they interrupted, but there is variation. The figure below shows the extent to which each justice is more likely to vote contrary to someone with whom they were involved in interruption in a given case. Points to the left of the zero line in the center indicate a greater tendency to agree, points to the right of the zero line indicate a greater tendency to disagree. All but four justices serving on the Court between 1960 and 2015 lie to the right of the zero line, being more likely to disagree with someone with whom they interrupt or are interrupted by.

Differences in Disagreement for Cases with and without Interruptions (Jacobi & Rozema 2018)

Interruptions as conflict, and other theories

We show that a substantially and significantly significant relationship exists between justice to justice interruptions and ultimate disagreement between those justices in the case at hand: a greater probability of voting disagreement between justices of 7% based on one interruption is a very large effect. The question, then, is what is the mechanism of that disagreement?

We explore several explanations for why justices who interrupt each other in a case are less likely to vote together. Our hypothesis is a “conflict” theory: interruptions constitute a type of observable conflict that is systematically associated with disagreement. The conflict theory is consistent with psychology research, which defines interruptions as “deviations from the turn-taking rule that specifies that only one party should talk at the time.”

But we also explore other theories. A second “exposure” theory would suggest that justices who speak more in a case might be more exposed to interrupting or being interrupted simply by virtue of taking up more airtime. A third “dissatisfaction” theory is that a justice is interrupting because he or she is at odds with the rest of the Court about the direction of the oral argument and the anticipated outcome of the case. For example, this may occur if the case is very salient to the individual justice but not necessarily salient to the rest of the Court. A fourth “difficult case” theory would suggest that interruptions are simply reflections of something about the case generally that is common to all justices, and cases with more disagreement are more prone to interruptions. In difficult cases, an interruption may not be specific to either of the justices involved in the interruption but is simply a response to the nature of the case itself

We find that the conflict explanation accounts for over half of the effect: the probability of two justices agreeing when one has interrupted the other in a case is reduced by over 4%, even after we have accounted for the other explanations. Exposure is the next most significant factor: a 10% increase in the time a pair of justices spend speaking decreases the likelihood of their agreement by 5.3%. We find no evidence for the dissatisfaction theory. We also find evidence for the difficult case theory: agreement between the justice-pairs is 1.3% lower when there is this kind of interruption. The effect of exposure and difficult cases, however, is less than the effect of conflict.

 

 

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Zombies in the graveyard! Knick v. Township of Scott rises from the dead

Reargument ordered in Knick v. Township of Scott

I wrote a post last Wednesday (on Halloween) all about the  spooky metaphysics of deciding when a graveyard taking comes into existence and predicting a 4:4 split in Knick v. Township of Scott. The post was scheduled to go live at our usual time, Monday morning at 9am. However, on Friday the Court restored Knick to the calendar for reargument and directed the parties to file additional briefing. This order basically confirms our prediction that the case was a 4:4 split, although it is possible that some of the justices were genuinely undecided and thought additional argument and briefing could clarify matters.

The reargument order calls for briefing on the Petitioner’s argument in footnote 14 of their brief that there is a key distinction between actions of the responsible government entity at the time of the taking and a compensation order (or denial thereof) by a state court under an inverse condemnation action. Petitioner argues that her takings claim is ripe as soon as the Township required she dedicate a public easement without offering compensation.

I strikes me that the call for 10 additional pages of briefing is just papering over the current 4:4 split that presumably Justice Kavanaugh will resolve when the case is reargued.

The original post follows:

Just in time for Halloween

In Knick v. Township of Scott, the Supreme Court waded into the somewhat metaphysical question of when exactly a takings claim against a state comes into being and the important practical question of where such cases can and should be litigated. This case was argued on October 3rd, but we thought it was perfect for a Halloween themed post.

The Williamson County Catch-22

As the Knick case itself illustrates, plaintiffs who would prefer to take their takings cases to federal court can easily fall into in a Catch-22 situation. Petitioner Rose Mary Knick argues that a local cemetery ordinance compelling her to allow the public daytime access to a grave site on her property amounts to a Fifth Amendment taking unless compensation is forthcoming. The Catch-22 arises because under the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, Knick cannot pursue her federal Section 1983 claim until she has gone through the Pennsylvania procedure for seeking just compensation and been denied. However, because courts since Williamson County have applied issue preclusion to prevent unsuccessful state plaintiffs re-litigating the same question in federal court, once she loses in a Pennsylvania state court, she will no longer have access to federal court.

Ghost in the machine?

Our predictive models suggest that Chief Justice Roberts (75%), Justice Gorsuch (94%) and Justice Alito (67%) are solidly in the petitioner’s camp.

Knick v. Township of Scott, Pennsylvania, Predictions based on SCOTUS Oral Argument

It seemed clear at oral argument that the Chief could see the merits of both sides and was concerned about  “the letters that we’re going to get from district court judges around the country who are not going to be very happy learning that they now have to adjudicate state inverse condemnation actions, which can be fairly elaborate.”

The model is understated in the case of Alito. True, Alito engaged with both sides of the argument, but his exchanges with Petitioner were almost entirely in the form of “That’s a good argument, but wouldn’t it be even better if you said it like this?” For example, about 10 minutes into the argument, Alito cut off Justice Kagan to say the following:

Samuel A. Alito, Jr.:

Let me see if I understand your claim, because a little — some of the questions and the discussion up to this point is a bit confusing to me. I thought your claim was that there is a violation of the takings clause and you can, therefore, bring a suit under 1983 when the state does something that constitutes a taking but at the same time says we’re not paying you anything for this. Now it’s not a question of when they would have to pay once they’ve admitted that there’s a taking, but when they do something that constitutes a taking, and they say, no, this isn’t a taking at all, and, therefore, you’re getting zero, which I understand to be your claim here, then you can go directly to federal court and bring an action under 1983. And to require you to go to state court before you do that is essentially to require you to exhaust state remedies before you can bring a 1983 claim, which is never required under 1983.

I thought that that was your argument.

J. David Breemer for the Petitioner could only agree.

Our predictive model counts only two clear votes for the Respondent, Justice Sotomayor (85%) and Justice Kagan (64%). However, even though our model suggests Justices Ginsburg and Breyer are leaning slightly in favor of the Petitioner, a vote for the Respondent seems just as likely. Based on his comments at oral argument, Breyer seems likely to vote for the Respondent and will leave Williamson County intact, but he will soften the effect of issue preclusion that creates the Catch-22.

The other federalism

Conservative justices sometimes care deeply about federalism and state sovereignty, but not so much when it comes to the authority of state courts to decide issues of state law. One of the striking things about the oral argument in Knick v. Township of Scott was that only Justice Sotomayor addressed the Petitioner’s most likely motivation for trying to keep her case in federal court.

Knick denies that there is a grave site located on her property; but she argues that even if there is, she loses an important property right if the state can compel her to grant public access during daylight hours. Assuming that the grave site exists (why take the case to the Supreme Court if it doesn’t?), one of the key questions on the merits of this takings claim will be to what extent Pennsylvania property law had always allowed for limited public access in a case like this. Sotomayor raised the question of whether the restriction was inherent in the property prior to the ordinance, describing it as the “whole issue.” She may have also been thinking that the real point of framing a case like this as a Section 1983 action is not to just to vindicate a federal constitutional right, it is to make the federal courts the final arbiters of Pennsylvania state property law.

The looming specter of a rehearing

By unwritten tradition, justices do not vote in cases for which they were not present at oral argument, and so Justice Kavanaugh should not break the 4:4 tie we predict. However, there is precedent for cases to be re-argued, particularly when otherwise the case is likely to split 4:4. But other cases in the past have simply been handed down with an even split by the original makeup of the Court. If Knick is reargued, and Kavanaugh has the deciding vote, judging by the apparent ideological split of the case in the first hearing, and the similarity between Kavanaugh’s and the other conservatives’ behavior at oral argument in the few cases he has heard so far, that could turn the outcome into a 5:4 decision for Petitioner Knick.

Knick v. Township of Scott prediction: 4:4

For Petitioner Knick: Gorsuch, Roberts, Alito, Thomas

For Respondent Township of Scott: Sotomayor, Kagan, Ginsburg, Breyer

Most likely to switch: Breyer and Roberts

 

 

 

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Conservative Principles v. Conservative Outcomes: The Clash of the Two Trump Appointees on the ACCA

Gorsuch versus Kavanaugh: what is a conservative?

The Supreme Court heard two cases about the reach of the Armed Career Criminal Act (ACCA) in October that highlight stark differences between the two Trump appointees. Justice Gorsuch appears to be, as promised, a conservative in the mold of the late Justice Scalia: sitting far to the right on the Court but willing to side with the liberals when issues of methodology or fairness in criminal cases demand. In contrast, Justice Kavanaugh was uncritical of the potential harshness of the government’s position in each case, seemingly focused on promoting the law and order outcome rather than refining the means of analysis.

The two cases involve complex distinctions about the applicability of the much-litigated ACCA, which imposes a 15 year sentence enhancement for persons convicted of three crimes within certain specified categories, at least one of which involves weaponry. Burglary is one recognized category, and U.S. v. Stitt queries whether burglary of a residence can include burglary of a vehicle—which previous cases have said are otherwise not covered—if those vehicles can be adapted for residency or are otherwise being used as residences. Robbery is not recognized as a category under the ACCA, but Stokeling v. U.S. raises the question of whether robbery can nevertheless be covered by the sentence enhancement as a crime that has “an element of use, attempted use, or threatened use of physical force” against another, even if it only involves using slight force to overcome minimal victim resistance.

Early in the argument in Stitt, Gorsuch started listing problems with the government’s position, drawing on a variety of approaches, from textualism—including drawing significance from the state legislature’s use of a disjunctive and the government’s interpretation raising problems of surplusage—to whether congressional intent could be inferred if the legislation covered so few states that defined burglary in such a way. He made similar points in Stokeling, along with raising concerns about the meaning of the legislation at the time of enactment, the traditional use of the term ‘robbery’ at common law, as well as more general critiques in Stitt about widely held dissatisfaction with the Court’s jurisprudence on the ACCA.

In contrast, Kavanaugh focused on carefully maneuvering around prior precedent to make a stronger case for the government. For instance, in Stitt, he appeared quite well-prepared, tailoring a path for getting around what had appeared to be a bright line rule against the inclusion of vehicles in burglaries. For a number of justices, ACCA cases raise questions of fairness, notice, due process, and proportionality, as well as difficult questions of statutory interpretation. Kavanaugh seemed unfazed by these worries, saying for instance of the notice question: “if you’re convicted three times of burglary for burglarizing an RV, you’re on notice, presumably. . . I don’t understand the notice point.”

These differences are likely to be determinative, and we predict that the two Trump appointees will diverge in their votes on these two cases, as the following two figures show.

Stokeling v US Predictions

Figure 2

US v. Stitt Predictions

The figures above show the results of a new predictive model we have developed. The model transforms statistical observations about oral argument directly into predicted probabilities based on the prior behavior and voting patterns of each justice. We blended an average of Gorsuch, Roberts, and Alito for the 2017 Term to estimate baseline parameters for the newly appointed Kavanaugh.

In Stokeling (the robbery case), the model predicts a winning coalition for the Petitioner (the criminal defendant) of Justices Sotomayor, Kagan, Gorsuch, and Ginsburg, with probabilities of 88%, 87%, 84%, and 68% respectively. Justice Breyer was uncharacteristically silent but we are somewhat confident he will make up the fifth vote (Breyer is only silent in about 7% of arguments). The model predicts at least a three justice minority consisting of Justice Alito, Chief Justice Roberts, and Kavanaugh, with 91%, 66%, and 61%, respectively. These numbers struck us as understatements after we listened to the argument.

In Stitt (the burglary case), we believe that the Chief and Justice Thomas will vote for the Petitioner (the state), although Thomas said nothing and Roberts said nothing of substance during the oral argument. Assuming Roberts will vote consistently in the two cases and that Thomas will vote against the defendant in both, the model predicts a winning coalition of Kavanaugh, Kagan, Alito, Roberts, and Thomas, at rates of 88%, 73%, and 58% for Kavanaugh, Kagan, and Alito, respectively. The model also predicts at least a three justice minority consisting of Ginsburg, Gorsuch, and Sotomayor (all north of 85%), but it is equivocal about Breyer, as indicated by the fact that he shows up on both sides of the 50/50 dividing line.

One of the striking aspects of the two arguments is that Justice Kagan seems likely to vote a split ticket, holding for the criminal defendant in one case and for the government in the other. For Kagan, the central question in both cases appeared to be the feasibility of line-drawing. The difference between the two cases is that Kagan appeared comfortable with the distinction between mobile homes and other vehicles in Stitt, but not with the different shades of robbery implemented by the various states in Stokeling. It is also possible that Breyer will split the same way for largely the same reasons, but this is far from clear from his numbers. We expect the rest of the justices to vote consistently pro- or anti-criminal defendant in both cases.

 

Stokeling prediction: 5:4 for Petitioner (Stokeling)

For Stokeling: Sotomayor, Kagan, Gorsuch, Ginsburg, and Breyer

For the government: Alito, Chief Roberts, Kavanaugh, and Thomas

Most likely to switch: Breyer

 

Stitt prediction: : 5:4 for Petitioner (the state)

For the government: Kavanaugh, Kagan, Alito, Roberts, and Thomas

For Stitt: Ginsburg, Gorsuch, Sotomayor, and Breyer

Most likely to switch: Breyer