Prohibition, pragmatism, and protectionism

Predicting Tennessee Wine and Spirits Retailers Association v. Blair

Wine retailers seeking to operate in Tennessee argued last week that the state’s highly restrictive condition requiring 10 years of prior residence effectively discriminates against out-of-state retailers. The case, Tennessee Wine and Spirits Retailers Association v. Blair, seems quite simple to us: the Court in Granholm v. Heald addressed the almost identical question in 2005, finding in favor of out-of-state wine producers on the basis of the Dormant Commerce Clause. Since then, two thirds of the personnel of the Court has changed and yet we see similar patterns emerging in the oral argument in Tennessee Wine and Spirits.

In Granholm the Court split 5:4, but not along the usual ideological lines. In the majority were Kennedy, Scalia, Souter, Ginsburg, and Breyer; the dissenters were Stevens, O’Connor, Thomas, and Rehnquist — the dissent encompassed both extremes of the Court. The numbers on the current Court look similar, as the following figure shows.

Supreme Court Oral Argument Prediction for Tennessee Wine and Spirits Retailers Association v. Blair (January 16, 2019)

That Alito and Sotomayor were closely aligned in this case was apparent not just from the numbers but also from the content of the argument. Early in the argument, Alito stepped in to buttress Sotomayor’s arguments and questions of Petitioner, a retailers’ association suing to prevent the state agency from granting licenses to the out-of-state retailers.  Alito asked “what is the — the basis for thinking that the purpose of or a purpose of Section 2 of the Twenty-First Amendment was to authorize the states in this one area, dealing with alcohol, to engage in protectionist activities that wouldn’t be permitted with respect to any other commodity?”

Despite the predictions of our model, we think that Kavanaugh amd Kagan are in agreement in this case. Kavanaugh argued persuasively that the Twenty-First Amendment gave states and localities the power to remain dry, but not to discriminate. Borrowing Kagan’s phrasing, he pointed out that otherwise, “the sky is the limit” in permitted discrimination.

We don’t predict another 5:4 ruling in the Tennessee case. Gorsuch, Breyer, and Kagan (and very briefly, Roberts) all raised concerns regarding the slippery slope of finding for Respondents here, asking what is to stop the Amazon of wine retailers from operating and making the Twenty-First Amendment redundant? But Kagan and Breyer also made similar arguments in challenge to Petitioner, querying what is to stop more and more protectionism if this level of discrimination is permitted. Breyer asked “Suppose you  [require that a]ny liquor store has to use paint made in Tennessee, asphalt made in Tennessee for the parking lot, neon — you know, I can go on.”

Breyer also wrung his hands about not wanting to upset the history of extensive permitted state regulation of these matters, but Granholm also gave him a chance to let these and the pragmatic concerns sway him, and he took the other side.

We think that Kagan and Breyer will rule in favor of Respondent, and only Gorsuch and Thomas (who said nothing, just for a change) are likely to be swayed by Petitioner’s argument, even though Gorsuch is said to be a formalist.

As we have discussed elsewhere, our predictive model of oral argument works better in divided cases than in unanimous or highly lopsided decisions. If the justices mostly agree on the merits of one side, at least a few of them are going fill the vacuum and ask questions of the side they favor.

The clearest sign of how unbalanced we expect this case to be comes not from the justices, but from the advocates. By our calculations, Carter Phillips is the fifth most experienced advocate in the modern era of the Court. He sat down with 10 minutes to spare, after giving a quick conclusion and asking if the justices had any further questions. We do not believe Phillips ran out of arguments; his early exit was a sign of supreme confidence. We trust Phillips’ expert judgment and think those missing 10 minutes are the strongest signal of the likely outcome of the case.

To further examine the back and forth between the justices and the three advocates — the other two being Shay Dvoretzky for Petitioner and Illinois Solicitor General David L. Franklin as amici curiae representing multiple states in support of Petitioner — the next figure shows the cumulative speech episodes for each advocate (in various shades of blue on the bottom) and the justices as a bloc (in orange on top).

The figure shows the Cumulative wordcount in Tennessee Wine and Spirits Retailers Association v. Blair in three segments, petitioner, amici and respondent.
Cumulative wordcount in Tennessee Wine and Spirits Retailers Association v. Blair (January 16, 2019)

Phillips and Dvoretzky spoke for roughly the same amount of time, around 20 minutes each, and had a similar ratio of words spoken by them versus the justices. The far broader region of the graph for Phillips indicates the much more rapid back-and-forth between the justices and that advocate. Phillips was effectively controlling the argument, in a way that Franklin, and particularly Dvoretzky did not. For instance, when Gorsuch began his less-than-concise invitation to give Phillips “the opportunity” and “one final shot” to convince him on the history, Phillips cut him off effectively but not rudely.

Here is the interaction:

Neil Gorsuch: . . . And I — I just want to give you one more shot —
Carter G. Phillips: Sure.
Neil Gorsuch: — at the — at the history —
Carter G. Phillips: Yeah.
Neil Gorsuch: — and dealing with the Wilson Act and Webb Act and —
Carter G. Phillips: Thank you, Justice Gorsuch.
Neil Gorsuch: — those sorts of things.
Carter G. Phillips: Appreciate the opportunity.

Phillips then went on to give a substantive answer.

In terms of deference given to the advocates, the first few minutes of Dvoretzky’s time were dominated by Sotomayor and Alito, not by the advocate. In contrast, both Franklin and Phillips were able to give extensive introductions before the justices jumped in. Solicitors General get more deference from the justices, and in this case at least, that was also extended to the state Solicitor General, for whom the ratio between advocate time and justice speaking time was the most favorable of the three. We do not expect that this deference will amount to success, Franklin played a poor hand as well as he could, we just note it for interest.

Prediction: 7:2 for Respondent (Blair, Interim Director of the Tennessee Alcoholic Beverage Commission, et al.)

For Respondent: Alito, Sotomayor, Kavanaugh, Roberts, Ginsburg (absent from the argument), Kagan, and Breyer

For Petitioner: Gorsuch and Thomas

Most likely the switch: Roberts

How SCOTUS argument transcripts and recordings became widely available

The data that makes our analysis possible is a resource that had to be created and nurtured

All of the empirical analysis at ScotusOA.com is based on the SCOTUS transcripts. We constructed a dataset drawn from the text of every Supreme Court oral argument from 1955 to 2017, based on 1.7 million speech events by justices and advocates. All of this came from Oyez.com. The Supreme Court makes some of these transcripts available but not all—only 15 Terms of the six decades that Oyez provides—and many are not fully identified as to who the speaker is. Oyez developed a program to identify the speaker, went back through the transcripts to 1955, and continues to improve the quality of the transcripts, checking for accuracy. How all of that data became available is an interesting story.

The history of the development of this invaluable resource is an interesting tale of the somewhat obsessive focus one person, Jerry Goldman, on what many thought was a very obtuse idea for a long time, but is now recognized as a great legal resource. It is also the story of the sometimes-odd interaction between the very staid institution of the Supreme Court and quickly changing technology.

Humble beginnings as a set of HyperCards

Before all else, Alderson Reporting Service created transcripts of SCOTUS arguments. These documents found their way to Lexis and Westlaw beginning in about 1980, but they did not identify the individual justices and they were text-only resources. Sometime in the 1980s, Jerry Goldman, then a Professor of Political Science at Northwestern University specializing in law and courts, had the idea—during a Chicago Cubs baseball game—to create a digital Court resource much like baseball cards. Jerry’s idea was that instead of photos of favorite players, their biographical information, and fun sporting trivia, Court nerds could enjoy the same but with justices and Supreme Court cases. Initially, the project was called “The Hitchhiker’s Guide to the Supreme Court.”

The Internet was yet to be, so Jerry set up the cards using HyperCard, a software tool that stacked and interconnected digital cards, with text, images, and other simple concepts. The Hitchhiker’s SC Guide used bitmapped, black-and-white images of the justices and gave information on the cases and the Supreme Court building.

In the early 1990s, Jerry made came to an agreement with the National Archives that allowed him to use their audio recordings of Supreme Court oral arguments, so as long as they would not be used commercially. In 1994, with the help of Joe Germuska, self-designated “Chief Nerd” of Northwestern’s Knight Lab, Jerry created a small prototype of a digital audio workstation that would eventually allow him to make the Supreme Court audio accessible. He received a small grant from NUL, and a subsequent NSF grant in 1995-1996, to build the equipment, and “OYEZ, OYEZ, OYEZ” was created. Another grant in 1996 from the NEH’s Teaching with Technology program allowed Jerry to slowly add more cases, using simple technology that involved cutting and pasting when updating changes to materials. Although the site only had about 100 select cases—all significant constitutional law cases—the server was struggling with the unwieldy technology, so Jerry and Joe decided to create a database of case records and justice records, with the audio on a designated audio server.

The Supreme Court creates its own monster

In 1996, at the same time that Jerry was developing what became Oyez.com, another resource, “May it Please the Court” launched, in which 23 edited versions of the oral arguments, with commentary, were made available for purchase on cassettes. That project gained enormous media attention because the Supreme Court threatened to sue the developer for using the case audio contrary to the arrangement with the National Archives. Ultimately, the Supreme Court gave in and actually changed its policy, permitting broader use of the recordings. The controversy sparked the media’s interest in using audio recordings of oral argument as part of their general news coverage, and that is when the use of Supreme Court oral argument audio really took off.

That appetite for Supreme Court audio hit another high in 2000, in response to Bush v. Gore. The prospect of the Supreme Court deciding a presidential election led to a sudden and enormous demand for a live feed of the two cases (Bush v. Palm Beach County Canvassing Board and Bush v. Gore). Knowing that the Court would be very resistant to a live video or audio feed, Jerry wrote to Chief Justice Rehnquist on November 25 to try to convince him to release the audio the same day as the argument, as a substitute for a live feed. As seen in the fax reproduced below, Rehnquist wrote back, agreeing to release the recordings in these exceptional cases on the same day as the argument. The remaining cases, orders etc. still had to wait until the end of Term for release to the National Archives. Eventually, the Court adopted the end of the week release of all audio, with occasional same-day release for other highly salient arguments, such as the Obamacare arguments and some of the gay marriage cases.

Justice Rehnquist's letter to Jerry Goldman regarding Bush v. Gore oral argument (described in the text)
Justice Rehnquist’s letter to Jerry Goldman regarding Bush v. Gore oral argument

Now, a multi-million user interface

Gradually, with some assistance, Jerry went backwards through the cases, collecting earlier arguments. Leveraging various grants, and collaborating with several scholars, by 2003, the collection extended back to 1980, and by 2014, the Oyez collection was made comprehensive back to October 1955. Today, Oyez also includes not only oral arguments but opinion announcements and speaker-identified transcripts. Jerry says: “The metadata for every case—including our abstracts—remains a work in progress but every case that is in Spaeth is represented in Oyez plus a substantial number of pre-Spaeth (i.e., pre-1953) cases.” Along the way, SCOTUS phased out its reel to reel recordings and went digital in 2004, and Jerry had created a standardized process for making the data available quickly.

Since 2010, Jerry reports that website traffic has increased at approximately 10% to 15% per year. Traffic has been growing particularly strongly in the last two years, going from 3.3 million users (in 6.9 million sessions) in the November 2011 to November 2012 period, to 7.2 million users (in 14.2 million sessions) over the same period in 2017-2018. That is a lot of people who owe a debt to Jerry for pursuing his vision with such determination.

The Supreme Court and technology: A sometimes fraught relationship

Jerry defied traditional academic incentives and has made a lasting contribution as a result. Jerry was advised by colleagues not to build a resource that he would get little credit for and would take away time from his research. Fortunately for those of us who enjoy not only empirical analysis such as that done at ScotusOA, but those who value timely analysis of the arguments on ScotusBlog and other forums, Jerry was stubborn enough to continue.

The history of Oyez.com shows how technological change can bring about institutional change. The Supreme Court has resisted the call for television access for decades, and it is clearly going to continue to do so. But the development of the Internet created the demand for a different type of access, one that was harder to resist. Once it became clear through Jerry’s efforts that online access to Supreme Court transcripts and audio was possible, a new constituency developed around the demand for such access. The Court’s reasons for rejecting televisions in the courtroom did not seem to apply to this new medium. The Court had to either develop new reasons for why it would not make transcripts and audio available, or else had to concede the point. In the end, the Chief chose transparency, but the Court may not have anticipated all of the implications of that move.

In particular, it probably never occurred to the members of the Court that some day social scientists would be using text data mining to place their conduct at oral argument under the microscope. The justices may not relish empirical findings such as that they favor one side over another at oral argument or that some justices’ votes are highly predictable based on whom they interrupt. The justices may have also not appreciated that their behavior at oral argument was already becoming more performative (partly due to increasing political polarization) and that the increased transparency brought by Oyez might accelerate this trend.

Lawyers, law students, journalists, and academics who study the courts all benefit from Jerry’s work in founding Oyez.com. It is hard to think of one person who has done more to make an aspect of the Supreme Court’s decision-making process more transparent, available, and accessible to the broader public.

This post is based in part on a telephone interviewwith Jerry Goldman on November 13, 2018, and follow-up emails.

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