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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.
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