Month: October 2018

Posted on

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

Posted on

Using interruptions to predict Supreme Court cases

Reading Justice Gorsuch

If you wanted to know which way Justice Gorsuch was going to vote in the 2017 Term, you could have placed your bets with 86% accuracy by observing just one statistic from oral argument—how many times Gorsuch interrupted each side.

In the 2017 Term, Gorsuch heard 60 arguments and voted 40 times for the Petitioner and 19 times for the Respondent (Washington v. United States was affirmed by an equally divided Court, and by convention no individual justice votes are recorded). On average, he initiated 1.6 more interruptions during the Respondent’s time than during the Petitioner’s (a few of these interruptions were of other justices but most were of the advocate). But like Chicago’s annual average temperature of 49°, that number masks all the interesting variation. In those cases where Gorsuch voted for the Petitioner, he interrupted the Respondent an average 3.8 more times than the Petitioner. Conversely, when voting for the Respondent, he interrupted the Petitioner 3.1 more times on average.

One way to visualize this kind of data is with a histogram.

Gorsuch Interruption Gap, Pro-Petitioner and Pro-Respondent Histograms 2017 Term

In the figure above, we have overlaid two different histograms of the interruption gap (interruptions of Petitioner minus those Respondent) for Gorsuch in the 2017 Term. The orange bars indicate the interruption gap in cases where the Justice voted for the Petitioner: it is clear that in the vast majority of these cases, Gorsuch interrupted less during the Petitioner’s time than Respondent’s. The blue bars show the interruption gap for the pro-Respondent cases. Here, in contrast, most of the weight of the figure is above zero—i.e. Gorsuch interrupted the Petitioner more often, though the shape of the blue distribution is flatter. We should note that because Gorsuch voted for the Petitioner twice as often as he voted for the Respondent (as the Court in general does), an orange bar represents twice as many cases as would a blue bar of the same height.

In the next figure, we further explore the distribution of Gorsuch’s interruption voting patterns through a boxplot.

Gorsuch Interruption Gap Boxplots 2017 Term

Boxplots are cool (trust us!) but they require a little explaining. The “box” part of a boxplot indicates the range separating the top 25% of the data from the bottom 25% (the interquartile range); think of this as the space between the 25 and 75 yard lines on a football field. The vertical line segmenting this box is the median of the data. So, in the figure above, a quick comparison of the light blue pro-Respondent box with the orange pro-Petitioner box shows that there is no overlap between the middle 50% of each of these categories. What is more, the orange box is entirely to the left of zero on the interruption gap scale and the blue box is entirely to the right. The white space between the boxes tells you at a glance that 75% of cases in the orange category have a lower interruption gap than 75% of cases in the blue category. And thus, when Gorsuch interrupts one side more than the other, he is usually showing his hand and telegraphing which way he will vote.

The whiskers extending away from the boxes extend close to the extremes of the data: they indicate about how far the data extends before you get to true outliers (in a normal distribution, 0.7% of observations lie beyond the upper and lower limits). The fact that the whiskers cross the zero point confirms that although the interruption gap is a very strong predictor for Gorsuch, it is not infallible. In fact, in the 2017 Term, relying on the interruption gap to predict Gorsuch’s votes would have been misleading in just 7 cases.

Some broader implications

The Supreme Court is under close scrutiny like never before. In this era of intense political polarization, the Court merits attention for reasons that go beyond the outcomes of individual cases or issues of methodology and jurisprudence. The justices themselves have become icons—or demons—representing the moral future of the country. Ruth Bader Ginsburg’s visage appears on cups, T-shirts, and various other paraphernalia, and the late Antonin Scalia is fetishized equally by the right. The two most recently appointed associate justices were subject to extraordinary confirmation processes. Gorsuch holds a “stolen” seat in the eyes of some, and Kavanaugh is defective in character and temperament, according to others. In a divided country where justices are feted and demonized with equal fervor, the public is now paying close attention to every aspect of the Court’s decision-making process, down to the meanings attributed to every word uttered. Oral argument deserves attention because it is the one public part of the Court’s process, and because it is public it gives us an opportunity to more rigorously assess aspects of judicial character that would otherwise be matters of supposition. One way to explore those more amorphous judicial traits is to look at the language justices use in the relatively unguarded arena of oral argument, as compared to tightly scripted case opinions.

Websites such as SCOTUSBlog provide excellent coverage of current Supreme Court cases using traditional modes of legal analysis: close reading and expert opinion. In addition, reporters such as Marcia Coyle, Dahlia Lithwick, Adam Liptak, and Nina Totenberg provide qualitative analysis of Supreme Court oral arguments, and there also are podcasts such as Amicus, First Mondays, and even an army of teenagers who write about the Supreme Court at the website High School Scotus. There is also excellent analysis by other empirically minded scholars, such as Tim Johnson, who has shown that oral argument can be important in judicial decision-making, and some have used transcript data in their research.

But ScotusOA offers something new. Unlike other commentators, we make voting predictions for each justice as the cases are heard. Predicting outcomes is always treacherous, as even a largely accurate model will have variation and noise: even an attempt to model prior data, where the results are known, will lead to imperfect “predictions.” Consequently, we buttress our empirical analysis by listening to the oral arguments, in order to follow the nuances of each case and to understand what the justices think they are communicating.

We also base our predictions on justice-specific models of features of oral argument that our early research has told us are important in the aggregate (Jacobi & Schweers, “Justice, Interrupted”; Jacobi & Rozema, “Judicial Conflict and Voting Agreement”; Jacobi & Sag, “Justices as Advocates”). The challenge is to develop a model that is a good predictive tool in individual cases. To do that, we have developed multiple models for each justice to predict their votes based on oral argument. What is striking about Justice Gorsuch is that he is most easily predicted using just one variable, the interruption gap.

Posted on

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 detention 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

Posted on

Gundy v. U.S. Forecast: A highly unusual meeting of minds

Gorsuch and Sotomayor find uncommon common ground

Last week’s oral argument in Gundy v. U.S. leads us to predict a unique alliance: a dissenting coalition of the liberal Justice Sotomayor and the conservative Justice Gorsuch. Gundy addressed whether the Sex Offender Registration and Notification Act (SORNA) unconstitutionally delegated unconstrained authority to the Attorney General to determine its pre-authorization application. Petitioner’s theory of the case has the potential to radically reshape the Court’s approach to the modern administrative state.

The following two figures show 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 Gundy’s oral argument. Our qualitative and quantitative analysis leads us to predict a 5:3 ruling in favor of the government, with Sotomayor and Gorsuch joined by the silent Justice Thomas, based on his previous positions. This alignment has never occurred before. For context, Sotomayor and Thomas have only once dissented in isolation from the other justices and have formed two of three dissenters in just three cases previously, but never with Gorsuch as the third vote. Sotomayor has never been part of a two or three justice dissent with Gorsuch. If we are correct, this will be a truly unique alignment among the justices.

Gundy v. US, Disagreement Gap (Words)

Gundy v. US, Disagreement Gap (Speech Events)

Listening to the oral argument, the reasons for this unusual alignment become clear: Sotomayor and Gorsuch have found common ground even though each is clearly guided by their contrasting ideologies. Sotomayor’s questions indicate a liberal distrust of the criminal justice process: she considered that who is covered by a statute is “at the core of what a law is” and here defines who is a criminal. In contrast, Gorsuch’s questions and comments show he is motivated by conservative distrust of government: he worried about the “blank check” Congress gave to the Attorney General. Neither justice seemed too bogged down in concerns about how limiting delegations like the one in SORNA would imperil the broader edifice of the administrative state.

We argued recently that you should prefer to play poker with Gorsuch than with any other justice on the Court, as the early data suggests his vote on case outcomes is the easiest to predict by the bias in his questions and comments at oral argument. The comments of two of his fellow justices and an advocate he was trying to help, as well as the laughter of the courtroom, implied agreement with that conclusion, at least in the case at hand. Gorsuch gave two very detailed leading speech episodes suggesting he agreed with Petitioner’s argument, ending with the rhetorical question “What’s vaguer than a blank check to the Attorney General of the United States to determine who he’s going to prosecute?” In response, Petitioner’s advocate Baumgartel repeatedly answered simply “yes.” Justice Ginsburg then pointedly leave quipped “That’s your argument stated very, very concisely,” to which Baumgartel piled on, saying “I’ll cede my time.” The courtroom laughed, and Justice Kagan, who had ceded the floor to Gorsuch after he interrupted her, continued the joke, saying “Well, then I’ll take back my time.” Laughter followed once more.

That Gorsuch was so clearly willing to rule against the government in Gundy is little surprise: along with Thomas, Gorsuch was predicted to be most likely to take that position based on his prior statements, with some suggesting  Ginsburg could possibly also agree with those two conservative justices. But much more surprising is our prediction here that it is Sotomayor, not Ginsburg, who is the most likely liberal justice to vote with Gorsuch, as the two figures above show.

Ideology was not all that mattered in Gundy’s oral argument. Justice Kagan is almost as liberal as Sotomayor, yet she measured very clearly in the other direction. On the numbers, she was even more predictable than Gorsuch, but her more subtle style makes her views less obvious to a casual observer. The other liberal justice, Justice Breyer, appeared on the figures above to be sending mixed or unclear signals. In fact, we are confident that he will join the strongest advocates for the government’s position: in order, Justices Kagan, Alito, and Ginsburg. Early in the argument, Breyer got his own laugh by advising Baumgartel that she was wise not to try to make an argument to strike down all 300,000-odd legislative delegations to agencies. A highly pragmatist justice, we predict Breyer will rule for the government for this very practical reason, but he is torn in this case between his liberal ideology and his pragmatism. He described the concern “gnawing” at him: the “danger when you combine [in one person] prosecuting a person with the writing of the law under which you prosecute.” With his ideology and his legal methodology pulling him in opposite directions, Breyer spoke similar amounts to each side. Yet, ultimately, he showed his hand, beseeching the government advocate Wall to help him write the rule to avoid such a danger.

The advocates seem aware of the dissonance between ideology and methodology that the case presents for some of the justices. Wall finished his argument with a long description of the many harms that would flow from ruling for the Petitioner, an attempt to ensure that Breyer, Alito, and the Chief stayed with him for pragmatic reasons. In rebuttal, Baumgartel tried to pick off Alito and Roberts by saying that the state legislative equivalent can avoid those harms. At least Breyer and Alito seem unpersuaded by this. The hardest vote to read is Chief Justice Roberts, who did question both sides closely, measuring as mixed on both measures, one in each direction.

Forecast: 5:3 for the U.S.

For the U.S.: Kagan, Alito, Ginsburg, Breyer, Roberts

For Gundy: Gorsuch, Thomas, Sotomayor

Most likely to concur or switch: Roberts

by Tonja Jacobi and Matthew Sag

Posted on

Empirical evidence of Roberts’ switch in the ACA case

The metrics suggest Roberts was not the only one to switch

With a Supreme Court nominee declaring there has been a left-wing conspiracy against him, naturally people are wondering whether a Justice Kavanaugh, if confirmed, could eventually act in a more judicious fashion. If not, might the new median of Court, Chief Justice Roberts, rise to the challenge of putting the institutional interests of the Court above his own political preferences? Looking back at the Chief’s role in deciding the fate of the Affordable Care Act (aka Obamacare), we are optimistic that he can.

When the fate of the ACA was decided in NFIB v. Sebelius, many were surprised to see the conservative Chief side with the liberal justices to uphold the signature legislation of the Democrat President. Others anticipated it, expecting Roberts to subvert his political preferences to avoid a 5:4 conservative-liberal divide on such a salient case in the lead-up to the 2012 election. On reading the opinions, many were struck by the fact that Roberts’ majority opinion read in large part as a manifesto against the legislation he was unhappily upholding; in addition, the dissent at times referred to the majority as “the dissent.” This suggested that Roberts may have initially sided with the conservatives – a view furthered by rumors to that effect. Until now, this has all been speculation. Here, we assess the empirical evidence from oral argument as to whether Roberts switched, and find some interesting results: not only did Roberts switch, but he was not the only one who changed his vote on some of the issues.

The four separate parts to the Obamacare oral argument

There were four questions addressed in four separate oral arguments over three days: (1) whether the constitutional validity of the ACA should even be heard by the Court; (2) whether Congress has power to require Americans to purchase healthcare, via the individual mandate, either under the Commerce Clause or the Taxing and Spending Clause; (3) whether, if the individual mandate was unconstitutional, it was severable, or alternatively, if the rest of the ACA must fall as a result; (4) and whether Congress exceeded its powers under the Spending Clause by threatening to withhold Medicaid spending to non-cooperating states. The following figures show how the justices behaved at each of the four oral arguments in order, measured by the disagreement gap. As we explained in more detail in a previous post, the justices tend to have more to say to the side they ultimately vote against. This can be measured in terms of speech events or just the difference in the number of words. If the gap is very small, we treat it as a weak signal, colored gray; occasionally, the size of the disagreement gap on one measure will be large but other factors, such as the balance of statements versus questions, or the disagreement gap on another measure, indicates that the signal should be treated as weak.

ACA Issue 1 Disagreement Gap (Words) [Click on the image to expand]
 

ACA Issue 1 Disagreement Gap (Speech Events) [Click on the image to expand]
On the first issue, of whether the Court should address the substantive issues at all in light of the Anti-Injunction Act, the above figure shows that at least four of the justices strongly indicated a desire to decide the case on its merits, and the others did not give a clear signal. Only Justice Scalia seemed consistently against a decision on the merits, but only with a weak signal from a justice who seldom held his cards close to his chest. The first issue, then, looked cross-partisan, with Justices Sotomayor and Kagan wanting to hear the case, presumably to uphold the legislation, as clearly as Justice Alito, who presumably wanted to strike down the legislation. Roberts, too, made clear his desire to decide the case on the merits. Consistent with this, the Court ultimately unanimously held that the Anti-Injunction Act did not apply and that the case should be decided on the merits. This suggests that our metrics are working reasonably well.

ACA Issue 2 Disagreement Gap (Words) [Click on the image to expand]
ACA Issue 2 Disagreement Gap (Speech Events) [Click on the image to expand]
The second issue was the key question in the case and here our analysis in the figure above strongly suggests that Roberts did indeed switch his vote from striking down the legislation to upholding it under the Taxing Power. On both measures, the disagreement gap in words and speech episodes, Roberts consistently measures as the second most vehement against the ACA, behind Alito on one measure and Scalia on another. At oral argument, Roberts seemed to be the most consistently opposed to the ACA and yet he ultimately provided the swing vote in favor.

However, it is important to note that this oral argument addressed the government’s power to pass the ACA under both the Taxing Clause and the Commerce Clause. In authoring the majority opinion, although Roberts found the ACA constitutional under the Taxing Clause, he went out of his way to make clear that the Commerce Clause did not support the passage of the ACA. If Roberts had gone into the oral argument thinking that the ACA was valid as a tax but not under the Commerce Clause, we would have expected to see at least mixed signals from him during this section of oral argument rather than a signal strongly against the ACA. Furthermore, given that if the law was valid as a tax, its status under any other head of constitutional power should have been irrelevant, if Roberts held his tax position from the outset, he should have been less interested in the Commerce Clause issue.

ACA Issue 3 Disagreement Gap (Words) [Click on the image to expand]
ACA Issue 3 Disagreement Gap (Speech Events) [Click on the image to expand]
So it looks like Roberts switched his vote on the all-important second issue, but he was not alone in making a switch on an issue in this case. On the third issue, as seen in the above figure, Justices Kagan, Breyer, and Sotomayor all come out very strongly on both measures in favor of severability, pointing to a way that even if the mandate was struck down, the rest of the Act would stand. Yet, eventually all three of those justices joined the 5:4 majority that did not answer this question, even though the dissent addressed the issue in detail. This is not surprising: compromise is a standard part of the political and diplomatic process of building a coalition on a multi-judge court. What is noteworthy is that it shows that Roberts was not the only one who appeared to have switched – our empirical analysis of the oral argument suggest that other Justices were also acting strategically in NFIB v. Sebelius.

ACA Issue 4 Disagreement Gap (Words) [Click on the image to expand]
ACA Issue 4 Disagreement Gap (Speech Events) [Click on the image to expand]
Given Justice Thomas’ habitual silence, oral argument on the fourth issue indicated a very clear 4:4 liberal-conservative divide among the speaking justices would translate into a conservative 5:4 ruling. Such an ideological division would have fit with previous Spending Clause decisions (e.g. New York v. United States, 1992). Yet, the ultimate outcome was 7:2 against the ACA. At oral argument, Justices Kagan and Breyer led the pro-ACA charge when it came to the disagreement gap in speech events and both were close behind Sotomayor in terms of the disagreement gap in the number of words, and ahead of Justice Ginsburg. And yet Kagan and Breyer joined the opinion striking down this part of the ACA. The majority decision looks to be a product of politics: perhaps Kagan and Breyer were making a strategic concession – compromising on the Spending issue to ensure the constitutionality of the legislation under the Taxing power – or perhaps they were following the Chief’s lead and moderating their positions to preserve the institutional legitimacy of the Court.

* * *

Our empirical analysis of the oral argument in NFIB v. Sebelius indicates that four justices ultimately voted against at least one of their priors on display at oral argument. It is, of course, possible that our metrics are inaccurate, but they align with many commentators’ and experts’ expectations at the time. Possibly, these justices changed their fundamental views some time after oral argument, but another explanation is more likely. We see NFIB v. Sebelius as a case study in judicial strategy, the politics of compromise and coalition building, and how the justices occasionally sacrifice their individual policy preferences to protect the legitimacy of the Court.

By Tonja Jacobi and Matthew Sag

Notes: (1) Thanks to Barry Weingast for suggesting this inquiry. (2) For a more detailed account, see Tonja Jacobi, Obamacare As A Window on Judicial Strategy, 80 Tenn. L. Rev. 763 (2013) (ssrn link)