Category: Prediction

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Textualism as pretext in the LGBTQ discrimination cases

  “We are all textualists now, [when it suits us]”

When a case is really close, really close, on the textual evidence, and I — assume for the moment I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it — and that — that is more effective — more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

~ Justice Gorsuch in Harris Funeral Homes v. Equal Employment Opportunity Commission
(with interruptions removed for readability)

Last week, in Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the Court addressed whether discrimination on the basis of sexual orientation and gender identity, respectively, is discrimination on the basis of sex, and thus contrary to Title VII. There has been much commentary on these cases; we are now able to take a look at the numbers, both to predict the outcomes of the cases based on the disagreement gap, and to empirically examine the content of some of the arguments.

This is a horizontal bar chart of predictions of the oral argument based on the ScotusOA model. The Y axis is ordered by strength of prediction of a vote for Petitioner. The X axis is centered on a 50/50 prediction. Numbers to the left of the midline range from 50 to 100 percent in favor of Respondent. Numbers to the right of the midline range from 50 to 100 percent in favor of Petitioner. The chart shows predicted votes in favor of Petitioner in blue with bars extending from the midline to the right and votes in favor of Respondent in orange with bars extending from the midline to the left. Details of this prediction are described in the text.
ScotusOA prediction based on the oral argument in Bostock v. Clayton County (October 8, 2019)
This is a horizontal bar chart of predictions of the oral argument based on the ScotusOA model. The Y axis is ordered by strength of prediction of a vote for Petitioner. The X axis is centered on a 50/50 prediction. Numbers to the left of the midline range from 50 to 100 percent in favor of Respondent. Numbers to the right of the midline range from 50 to 100 percent in favor of Petitioner. The chart shows predicted votes in favor of Petitioner in blue with bars extending from the midline to the right and votes in favor of Respondent in orange with bars extending from the midline to the left. Details of this prediction are described in the text.
ScotusOA prediction based on the oral argument in RG & GR Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (October 8, 2019)

Our predictive model for Bostock shows Justice Alito clearly on the side of the respondent and Justice Ginsburg equally clearly on the side of the petitioner. The model is surprisingly equivocal about Roberts, Breyer, and Kavanaugh, and it suggests that Sotomayor, Kagan, and Gorsuch are leaning in favor of complainant petitioner. According to our model of Harris Funeral Homes, the justices lined up slightly differently in the transgender case. It shows Roberts and Gorsuch strongly in favor of petitioner (i.e. favoring a narrow reading of title VII) and Breyer, Kagan, and Ginsburg strongly favoring respondent. The model we use to predict votes based on oral argument is not particularly well suited to combined arguments, and this combined argument was especially confused. For example, the justices had multiple questions about bathrooms and gender identity for Pam Karlan in the first argument about the gay skydiver that would have made a lot more sense directed to David Cole in the second case about the transgender funeral home employee.

Others have suggested that Justice Gorsuch could be the potential swing vote in these cases. The reason for this is that, as a professed textualist, he could be expected to vote on the side of the Title VII plaintiffs, for whom the textual argument appears clear: if a woman who is married to or attracted to a man is treated differently to a man who is married to or attracted to a man, that would is clearly a difference based on sex. Similarly, if a woman who chooses to dress or identify as a man is treated differently to a man who chooses to dress or identify as a man, that is also a difference based on sex. Of course, as a conservative, Gorsuch’s ideological preferences pull him in the other direction. As such, these two cases are good tests of just how much of a textualist Gorsuch really is, or alternatively, how much of an ideologue. Our empirical analysis of the argument in Bostock v. Clayton County is encouraging for the plaintiff, but not in Harris Funeral Homes. 

Of course, if Gorsuch votes to deny gay and transgender individuals the protection that Title VII’s plain text evidently affords them, he will not admit that he is not being a textualist. Rather, as the initial quote suggests, Gorsuch is claiming that the cases are very close, and that it is permissible to stray from textualism under such conditions. The word cloud pictured below is based on what Gorsuch had to say in Harris Funeral Homes v. EEOC. It illustrates Gorsuch’s emphasis on the “close question” and signals that he is likely to vote for a narrow atextual reading of Title VII.

Word cloud as described in the text.
Word cloud based on Justice Gorsuch’s contributions to oral argument in RG & GR Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (October 8, 2019)

Text or pretext?

There are two massive problems with Gorsuch’s position: first his claim that the textualist case is a close one is implausible, and second, he is not asking the appropriate question.

First, the textualist argument on the other side is not simply weak; rather, it defies ordinary doctrinal logic. The argument goes that discrimination on the basis of sexual orientation or gender identity is not discrimination on the basis of sex because the question is: Is it lawful to treat a gay man differently to a gay woman, or a trans man differently to a trans woman? However, this phrasing of the question only works if you presuppose the answer to the question asked of the Court: whether using sexual orientation or gender identity as a basis for distinguishing is lawful under the statute. To phrase the question in terms of whether you are differentiating between different gay people in the right way presupposes that it is okay to treat gay women different to straight women, and gay men different to straight men. The textualist argument is not close; it is not even close to being close.

But the more damning problem is that a justice is not a textualist if he or she follows textualism only for the easy cases, and then if the case is “close” to the line, he or she can then turn to some other methodological approach to determine the difficult cases. The whole point of a judicial methodology is to apply it to differentiate between cases under and over the line. Looking to the text simply to ascertain whether a purported meaning is close enough to the penumbra of the text to justify then turning to purposivism to fill in the detail is contrary to the very notion of textualism. Put another way, it is not textualism if the key question is not what tool should be applied but rather when should the justice to apply it.

Consequently, gay and trans activists, and those who support them, placing their hopes on Gorsuch being true to his purported judicial ideology is likely to lead to disappointment.  In fact, if Gorsuch is going to support that side of the arguments to any extent, the models make clear that it will be to support the gay complainants but to disappoint the trans complainants. This is in spite of the fact that the textual argument is much stronger in Harris than Bostock: the complainant in Bostock literally was fired for wearing a dress, which would have been permitted to anyone born a woman. The members of the Court, like much of society, have had more time to get used to the idea of people being gay than people being trans, and so find it easier to recognize and reject discrimination against gay people than trans people. To the extent Gorsuch will stray from his ideology, it would be in favor of the text but it will hinge more on that greater tolerance of gay people, and consequently greater tolerance of gender discrimination against trans people.

Prediction:

Title VII plaintiffs (Petitioner in Bostock, Respondent in Harris): Breyer, Ginsburg, Kagan, Sotomayor

Title VII defendants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas.

Most likely to switch: Gorsuch, but only in Bostock.

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How to predict doctrinally complex and morally murky death penalty decisions?

In its first case of the 2019 Term, the Supreme Court heard oral argument in Kahler v. Kansas, on the question of whether insanity is constitutionally required to be an available defense to capital murder. Petitioner argued that, in particular, the test of whether a defendant knows right from wrong is constitutionally required, and so Kansas’s consideration of insanity solely as to whether a mental defect prevents the defendant from forming the requisite mens rea, plus consideration at the penalty stage, is inadequate.

One easy way to know that a particular justice is not buying an argument like Petitioner’s is when the justice gives a detailed recitation of the almost always grisly facts of the death penalty case. Justice Alito did just that, reminding everyone that Petitioner Kahler not only killed his estranged wife and her mother, but executed his two daughters in a seemingly premeditated and cruel fashion, telling one to stop crying as he slaughtered her and her family—except for her brother, who had shown more sympathy for their father and so was spared the carnage, if not the trauma. But predicting Justice Alito’s likely vote in death penalty cases is usually pretty easy; predicting some of the other justices’ votes is more difficult, and requires more sophisticated tools. The figure below provides an assessment of the likely votes of each of the justices, based on everything they said at the oral argument, as well as what they have said in every other case they have heard in their time on the Bench.

ScotusOA prediction based on the oral argument in Kahler v. Kansas. Described in the text.
ScotusOA prediction based on the oral argument in Kahler v. Kansas

Like the Supreme Court, ScotusOA took the summer off from empirically analyzing Supreme Court oral arguments. As such, a quick reminder (or an introduction for the uninitiated) is warranted to explain how we generate our predictions. We measure various aspects of each justices’ behavior at a given oral argument, and how that behavior is tilted to one side or the other. We call this the disagreement gap: the difference in the treatment of the two sides is a strong predictor of how the justices will vote. For instance, interrupting one side more or talking more during the time of one side are both strong predictors of ultimately voting in favor of the other side. We then put those variables in the context (using Bayesian updating) of each justice’s behavior in general at oral argument, to create a prediction for each justice, based on their particular style at oral argument generally.

The Kahler oral argument illustrates the value of taking this contextual (Bayesian) approach: Justice Alito was seemingly the strongest advocate for the Respondent’s position—and we use the term “advocacy” advisedly, based on prior research showing that the justices engage in considerable amounts of advocacy during oral argument. Yet, Justice Ginsburg pips him by 1% in her likelihood to vote for Respondent. Now 1% is obviously not statistically significant, but the fact that the liberal Justice Ginsburg is measuring as effectively equally likely as the conservative Justice Alito to vote against a death penalty defendant is significant. This prediction is a product of that aforementioned context: Justice Alito is very often extremely uneven in which side he directs most of his questions and comments to, whereas Justice Ginsburg is very rarely so tilted to one side. In the Kahler oral argument, she only spoke during the time of Petitioner, and that makes us confident that she will vote for Respondent.

A look at the substance of Justice Ginsburg’s questions supports this conclusion. She opened the questioning (after the first application of the new Supreme Court rule that gives advocates two minutes of uninterrupted speaking time) with a tough challenge for Petitioner’s advocate, Sarah Schrup: whether a judgment of “guilty but insane,” which would result in institutionalization rather than imprisonment or the death penalty, would satisfy the Constitution. She followed up with hypothetical variations that prevented Schrup from answering the question by looking to collateral harms, and then Ginsburg asked about whether the history was more complex than Schrup was implying. All of these were indications of her position, but the strongest indication was the fact that she didn’t ask equally tough questions of the other side, as she typically does.

In terms of predicting the case rather than individual justice’s votes, three justices were harder to analyze on the basis of oral argument: the Chief Justice, Justice Kavanaugh, and the perennially silent Justice Thomas. (Thomas was in fact absent due to illness. He will apparently participate in last Monday’s cases on the basis of the briefs and the transcripts.) Thomas is easy to predict in a similar contextual way, but looking at his votes, which overwhelmingly favor the state in death penalty cases. But the two justices most likely to be the median of the Court, Roberts and Kavanaugh, were far more evenhanded than any of the other justices in their questioning and other conduct.

Roberts asked tough questions of both Schrup and Toby Crouse, the advocate for Kansas, but asked nothing of the more persuasive advocate for the government’s side, Elizabeth B. Prelogar, representing the United States. She directly answered the tough questions that Crouse had struggled with—most memorably, Justice Breyer’s question of how Kansas can justify excusing by reason of insanity someone who commits murder because he deliriously thinks his victim is a dog, but executing a person who deliriously believes that a dog commanded him to commit the murder. Prelogar may have satisfied the Chief’s concerns with that side of the argument. Thus, although the numbers show him close to 50:50 but potentially tilting for Petitioner, we predict him more likely to vote for Respondent.

Kavanaugh was more focused on the detail of doctrine and history, and hammered both sides with significant challenges. Whether assessed qualitatively or quantitatively, Kavanaugh’s questions do not reveal his likely vote in this case. Based on the oral argument alone, he really is too close to call. In terms of looking to past opinions, Kavanaugh was not involved in one of the two big death penalty cases last year, Madison v. Alabama. He voted with the conservative majority in the other case, Bucklew v. Precythe, but wrote a separate concurrence emphasizing the narrowness of the opinion—that is, he rode a fine line in the case, and gave little away about his general proclivities in this area. We expect something similar in this case: either a narrow majority opinion in favor of Respondent written by Kavanaugh, or a narrowing concurrence by Kavanaugh.

Prediction:

Petitioner: Breyer, Kagan, Sotomayor

Respondent: Alito, Ginsburg, Gorsuch, Kavanaugh, Roberts, Thomas

Full disclosure: Petitioner’s advocate, Sarah Schrup, is a colleague of Tonja Jacobi’s at Northwestern Pritzker School of Law, and Jacobi helped moot Schrup in preparation for the oral argument. 

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Dissensus on the Census

Checking every box

New York State’s challenge to the decision to include a citizenship question on the 2020 Census administered by the Department of Commerce checks every box for a Trump era Supreme Court case. Here we have states and public interest groups trying to hold the executive branch of the federal government to account for a decision that is technically within its power, yet self-evidently made in bad faith, and for which pretextual support is offered after the fact.

ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)
ScotusOA.com model prediction based on Supreme Court Oral Argument in Department of Commerce v. New York (April 23, 2019)

The Trump administration argues that asking about citizenship will make it easier to comply with the mandates of the Voting Rights Act, but the evidence available to the Secretary of Commerce when he made this decision was that a citizenship question would significantly depress response rates—primarily in households with undocumented or Hispanic residents. This in turn would make all the Census data less accurate (including the data on citizenship). The 2020 Census data will be used to draw redistricting maps, so Republicans have an obvious partisan interest in artificially depressing the apparent population in communities with high numbers of immigrants because these tend to vote Democrat. Oral argument last week in Department of Commerce v. New York reflected that partisan advantage to the conservative party.F

The argument divided quite predictably along ideological lines. Even though Justice Ginsburg shows as 60% likely to vote for petitioner, this is an artifact of her low numbers—she was the only justice (other than Thomas) to be remarkably uninvolved in the argument. She spoke 77 words to the three advocates on the Respondent side, challenging the inclusion of the question, and 112 words to the Solicitor General, representing the Petitioner. In essence, Ginsburg was not showing her hand.

Country before party?

In contrast, the rest of the speaking justices were uninhibited in showing their partisan colors. The conservative justices barely spoke a word in response to the Solicitor General’s cavalier attitude to potentially depressing responses to the census, then pounced on Respondent advocates—particularly Barbara Underwood, representing New York State—questioning every methodological aspect of the expert certainty regarding the effect inclusion of the question will have.

For their part, the three other liberal justices were actively involved, but all shied away from stating the real problem: the bad faith of government, and Secretary Wilbur Ross in particular. Only at the end of the government’s main period of argument did Justice Kagan come close to naming the misconduct at the heart of the issue, with echoes of the Nixon hearings underlining her words:

Elena Kagan: And if I may say — I’ll just finish here, General — I mean, a lot of your argument — your briefs are extremely well done.

Noel J. Francisco: Thank you.

Elena Kagan:  But a lot of your argument just do not appear in the Secretary’s decision memo. And — and the fact that SG lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization. The question is, what did the Secretary say? Where did he say it? When did he say it? What does it mean, other than just ipse dixit and conclusions?

We have seen that the new conservative appointees nominated by President Trump have looked like siding with the liberals on a few issues, such as ineffective assistance of counsel, excessive fines, or ensuring broader access to Kavanaugh’s much loved beer. But when it comes to rigging elections to benefit the Republican Party, be it through gerrymandering or corrupting the Census all of the conservatives fall into partisan formation.

An accurate census is vital to many things, as mentioned, but it is also key to the Democratic system functioning properly. Similarly, political gerrymandering can prevent meaningful democratic involvement. Without the Supreme Court monitoring the self-interest of politicians in these core constitutional matters, everyone will suffer in the long run. The fact that Republicans may benefit in the short term should not blind these justices to the good of the country.

Prediction:

Petitioner (Department of Commerce): Alito, Gorsuch, Kavanaugh, Roberts, Thomas

Respondent (New York): Breyer, Ginsburg, Kagan, Sotomayor

Most likely to switch: no one will switch

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Trademark, scandal, and dodging precedent in Iancu v. Brunetti

Last Monday, the Supreme Court heard argument in Iancu v. Brunetti over whether the Patent and Trademark Office (PTO) can refuse to grant trademarks to “immoral” or “scandalous” matters, as permitted under §2a of the Lanham Act. Last year, in Matal v. Tam, the Court ruled that the same section’s mandate to the PTO to deny trademarks to “disparaging” matters was unconstitutional, thus prohibiting the PTO from denying trademarks to brands based on, among other things, racial epithets.

The right to offend minorities versus the right to offend the majority

Tam was a difficult case: the facts at issue concerned an Asian band, “The Slants,” who embrace that traditionally derogative term in an ironic sense, so as to undermine the power of the offensive term. Importantly, the Court did not limit its ruling to minorities reclaiming derogatory terms; instead it held that genuinely racist, sexist, and other derogatory trademarks could not be barred by the PTO on those grounds. Having unanimously (though in split opinions) decided Tam, it seems to follow inexorably that “immoral” and “scandalous” marks must receive like treatment. Paradoxically, however, the Court last week seemed considerably less inclined to allow the PTO to prohibit swear words than to prohibit racial slurs.

In the oral argument in Iancu v. Brunetti, many of the justices went to great lengths to try to differentiate Tam, and their efforts were less than convincing. Chief Justice Roberts seemed to be more concerned with the idea of obscene trademarks than with the idea of trademarks for hate speech. Justice Breyer suggested that swear words could just be considered “fighting words,” and thus an exception to First Amendment protection—yet a white-owned company exploiting the term “Redskins” is not. Many of the justices seemed willing to contemplate allowing words that are incredibly offensive to minorities to become federal trademarks, but not words that might offend genteel folks, such as the justices themselves.

ScotusOA.com prediction based on Supreme Court Oral Argument in Iancu v. Brunetti (April 15, 2019)

How can you give a FCUK™ without getting FUCT™?

We think that Justices Sotomayor and Kagan are in fact in Respondent’s camp, despite the unclear signals they gave. They both see Tam as binding precedent in this case. They also seemed concerned, like Justice Gorsuch, that there was no “rational line” through the PTO’s inconsistent decision-making regarding words that are phonetically similar to “fuck,” whether in past tense or present tense.

The PTO defines vulgarity, a subcategory of scandalous terms, as “lacking in taste, indelicate, and morally crude.” These terms are, of course, inherently subjective and discretionary and by its own admission the PTO’s application of this test has been highly inconsistent. The PTO has allowed “FCUK,” “Fugly,” and “PHUKIT” to be trademarks, but denied, in the case at hand, a trademark for “FUCT.” But the government promises only to apply the seemingly broad terms of the statute far more narrowly in future, and argues this should help it avoid the finding of unconstitutional vagueness.

A case driven by confusion and prim euphemism

The core goal of trademark is to avoid consumer confusion. Ironically, the Iancu v. Brunetti oral argument was itself clouded with confusion about some very basic features of trademark law. One striking misunderstanding came from Justice Alito:

Justice Alito: “What’s going to — if this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations? There’s going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive — they’re not unlimited. What’s going to — there’s going to be — those who get there first are going to be the ones who have these.”

We think the Justice might be confusing trademarks with the race to claim internet domain names. Registration of a mark in one classification does not preempt other non-confusing uses of the same word, either as a trademark or as a verb.

One thing that the Court did not seem confused about was the word at issue. Rather disappointingly for those among us who consider that swearing can be a linguistic art form, none of the advocates or the justices were willing to say the word “FUCT.” Instead, Mr. Stewart made sure the Court was clear on the term by using up his time by saying, more than once, this rather elaborate and wordy euphemism: the term that “would be perceived as the equivalent of the past participle form of the — the paradigmatic profane word in our culture.” Are the justices so sheltered and fragile that advocates must avoid even the conventional euphemism of “the f-word?” If so, this once again raises the problem of the unrepresentativeness of this elite group of jurists, particularly when deciding cases that hinge on the mores, perceptions, and likely inferences of the much more diverse U.S. population.

In similarly euphemistic terms, Mr. Stewart referred to a “particular racial slur [which] is considered uniquely offensive, even as compared to other racist speech” and argued that accordingly “it could be denied registration on the ground that it was an impermissible mode of expressing a racist — racist thought.” So the government wants not only to treat rude words as more offensive than racial slurs, it also wants to differentiate among the racial slurs that it considers beyond the pale, even after the Supreme Court has ruled that it does not have the power to make such determinations. We applaud the PTO’s act of civil disobedience here, but it is very hard to reconcile with the Court’s opinion in Tam. Similar acrobatics and logic will be needed to differentiate this case from Tam, but our analysis suggests that at least some justices on the Court are willing to limber up and do their best to take on that challenge.

It could be that the outcome will actually be unanimous for Respondent, if only because terms such as “scandalous” and “immoral” are clearly at least as unconstitutionally vague as “disparaging,” and would return the Court to regulating morality, a task it has struggled with in the past. As we have previously discussed, unanimous and lopsided decisions are hard to predict due to cheap talk at oral argument. Justice Breyer and the conservatives (other than Gorsuch) may have simply been clucking their displeasure at the vulgarity of the Respondent. They may in fact rule in his favor while clutching at their pearls. But the cavalier attitude of the Court during oral argument this Term toward other precedents makes us skeptical.

Prediction:

Petitioner (PTO): Breyer, Roberts, Alito, Kavanaugh, Thomas

Respondent (Brunetti): Ginsburg, Gorsuch, Kagan, Sotomayor

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The Supreme Court is toasting marshmallows while democracy burns

Partisan Gerrymandering and the Passive Court

Last week, the Supreme Court considered (yet again) whether there should be any constitutional remedy for outrageous and blatant partisan gerrymanders—specifically the Republican gerrymander in North Carolina and the Democrat gerrymander in Maryland. The two cases, Rucho v. Common Cause and Lamone v. Benisek, were heard back to back over a total of 2 hours and 11 minutes.

The central question at oral argument in both cases was not whether partisan gerrymandering was good or bad—everyone knows it is bad—the question was whether there is anything the Court can and should do about it. Most people think this a bit like asking whether there is anything the fire department should do when an arsonist is pouring gasoline on a schoolhouse. But to be fair to the justices disinclined to act, there are some thorny conceptual questions to address before the Court can take action against the politicians and mapmakers currently setting fire to our democracy.

The ability of politicians to choose their voters, rather than vice versa, is dramatically increasing. In 2016, only 40 of the 435 seats in the House were competitive, compared to 100 in 2010, when gerrymandering was already a problem. After the 2010 census, the problem of partisan gerrymandering intensified dramatically due of a perfect storm of increased computer power, better statistical models, and more granular and more reliable data on individual voters. If the Supreme Court fails to act in Rucho and Lamone, the number of competitive seats could drop even lower and our votes will mean less and less.

Not only do partisan gerrymanders reduce accountability in individual districts, they often lead to counter-majoritarian results state-wide. In the last election, Wisconsin Democrats received 205,000 more votes than Republicans, but won only 36 of the 99 available seats in the gerrymandered State Assembly. In another gerrymandered race in 2018, Ohio Democrats got nearly 50% of the vote but only a quarter of congressional seats. North Carolina is a virtually evenly divided “purple” state. Yet in 2018, where Democratic candidates won every statewide election on the ballot, Republicans won the 10 of 13 districts—just as their map makers promised them.

In Rucho v. Common Cause, Paul Clement tried to persuade the Court that there was no room for the Court to assess even such an extreme disregard for representing the will of voters. But as Justice Sotomayor crisply explained in the very first question of the day: “Mr. Clement, that ship has sailed in Baker v. Carr.” If racial gerrymanders and the unequal weighting of votes (the issue in the 1962 case of Baker v. Carr) are justiciable, it makes no sense to say that partisan gerrymandering is inherently non-justiciable.

Currently, legislators craft maps that involve absurd line drawing in order for politicians to insulate themselves from public accountability, as can be seen in the map below of
Maryland’s 3rd Congressional district. Without the possibility of judicial review, there is no reason politicians will have to follow even the most basic intuitive criteria, such as contiguity. Non-justiciability amounts to a free-for-all.

Maryland US Congressional District 3 (since 2013)

Politicians around the country will use all the information in their voter files and all the tricks of big data to ensure that the will of the people is irrelevant to determining who represents them. As well as the 10:3 split in North Carolina, we should expect to see a 18:0 split in Illinois if the Court holds that partisan gerrymandering in non-justiciable—anyone who thinks Mike Madigan will care about traditional districting criteria (other than the mandatory one-person-one-vote requirement) if the courthouse door is closed to complaints about partisan gerrymandering is a fool.

Disproportionate angst over proportional representation

The hardest question in partisan gerrymandering is how one can definitively say whether a district map or a statewide map is fair or unfair without simply relying on the fact that it fails to deliver proportional representation. Of course, proportional representation sounds appealing, but individual House members represent distinct geographic areas and are elected on a “first past the post” basis—both factors are likely to produce non-proportional outcomes from time to time, even without deliberate partisan bias.

Although Paul Clement is a gifted advocate, we thought that Justice Alito actually expressed North Carolina’s argument most effectively:

Justice Alito: But, if you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don’t you need a criterion or criteria for deciding which of the 24,000 maps you’re going to choose? And implicit in Justice Kagan’s comments is the idea, is it not, that you have to choose one that honors proportional representation?

To confirm our impression that proportional representation was the issue of the day, we broke the transcript in Rucho down into two word ngrams. Excluding the names of the justices, the most frequent 2grams (two-word ngrams) are illustrated below, with larger words being more frequent.

ScotusOA.com: Most frequent word pairings in Rucho v. Common Cause oral argument.

“Proportional representation” was mentioned 44 times in Rucho, whereas the next most common 2grams, “North Carolina” and “majority votes”, were mentioned only 14 and 11 times, respectively. Proportional representation was also the most common 2gram in Lamone v. Benisek, where it was only mentioned 12 times.

For all the angst over proportional representation, the quandary is overstated. The answer to the proportional representation question is surely that in a representative democracy with a constitutional guarantee of equal protection, we are all entitled to have our votes aggregated according to fair and reasonable criteria. A fair process will lead to something close to proportional representation in most cases, but not inevitably: respecting natural and political geography can lead to something different without violating the Constitution.

The Constitution does not guarantee proportional representation, but the Equal Protection Clause and First Amendment both require that district boundaries are drawn by a fair process, applying appropriate criteria. Partisan advantage, i.e., rigging the system in favor of your own team, cannot be one of those criteria.

Last call for democracy

Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how is the court likely to rule?

ScotusOA.com prediction based on Supreme Court Oral Argument in Rucho v. Common Cause (March 26, 2019)

Our predictive model for Rucho v. Common Cause is not encouraging. It shows a clear partisan split, with all of the Republican-appointed justices strongly leaning towards preserving the Republican gerrymander in North Carolina and all of the Democrat-appointed justices clearly against.

ScotusOA.com prediction based on Supreme Court Oral Argument in Lamone v. Benisek (March 26, 2019)

Our model’s predictions for Lamone v. Benisek are a bit confused by the fact that the justices seemed to be running out of steam at the end of the second hour of gerrymander-palooza. An optimist might conclude that the brazen Democratic Party gerrymander in Maryland will make Chief Justice Roberts see that the dangers of inaction for the Court outweigh risks of entering the dreaded “political thicket”, but we are doubtful. As for Justice Kavanaugh, based on some of his questions and comments, there is an outside chance that he will defy partisan expectations, but this is probably just wishful thinking.

Predictions for Rucho v. Common Cause and Lamone v. Benisek

Appellants: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas

Appellees: Breyer, Ginsburg, Kagan, and Sotomayor

Most likely to switch: Kavanaugh and Roberts

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When is a cross not just a cross?

Hint: Almost always, and definitely when it’s 40-feet-tall!

The Establishment Clause expressly prohibits the State from making any “law respecting an establishment of religion.” Yet, for decades, the Supreme Court has applied this particular limit on government power only selectively and half-heartedly. On the facts, it seems obvious that a 40-foot-tall stone and concrete cross set astride a traffic median by the State of Maryland is, first and foremost, a religious display by the State. It is equally obvious that the decision to honor WWI veterans with this particular symbol is either pretextual or secondary to the religious symbolism of the Latin cross. Granted, a cross can be seen simply as a marker for the dead (although many find it exclusionary, and offensively so, in that context) but when the cross is 40-friggin-feet-tall, its predominant meaning is unmistakable. 

Facts versus fictions

As clear as American Legion v. American Humanist Association might be on the facts, we suspect that in this particular area of constitutional law, facts matter a lot less than beliefs about the inherent legitimacy of Christian values and identity as universal American values and identity.

The universalist claim is wrong in every possible way. The founders did not hold to it even when the population was overwhelmingly Christian, and there are now more non-Christians in America today than there are people in Thailand, the United Kingdom, France, or South Korea. Nonetheless, the fiction that symbols like the Latin cross and the Ten Commandments are simultaneously Christian and yet universal is an article of faith among many conservative Christians, and this almost certainly includes the five conservative Christian men who constitute the majority of the Supreme Court.

Unpredictable jurisprudence, predicable jurists

The Establishment Clause jurisprudence on questions such as the mandatory prayer readings and the display of religious monuments is inconsistent and unpredictable, but the justices themselves are not.

Our predictive model, based solely on the oral argument, is almost exactly what you would expect. We see Justices Alito, Gorsuch, and Kavanaugh strongly in favor of the Petitioners (The American Legion and The Maryland-National Capital Park and Planning Commission), joined by Justice Breyer (consistent with his live-and-let-live concurrence in Van Orden v. Perry) and Chief Justice Roberts (who admittedly comes out as a toss-up on the numbers, but there seems little doubt where his sympathies were).

The female justices of the Supreme Court, Justices Ginsburg, Kagan, and Sotomayor, seemed far more skeptical of the universalist assumption. It is probably no coincidence that Ginsburg and Kagan are Jewish and that Sotomayor is (in her own words) a wise Latina.

Bar chart showing predictions for each supreme court justice. Justices are ordered from pro-Petitioner to Pro-Respondent. Pro-petitioner represented by blue bars to the right of the 50 percent midline in the top half of the figure. Pro-Respondent represented by orange bars to the right of the midline in the lower portion of the figure. The results are discussed in the text.
ScotusOA.com prediction based on Supreme Court Oral Argument in American Legion v. American Humanist Association (February 27, 2019)8

Prediction: 6:3 for Petitioners

For Petitioner: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas. Breyer concurring.

For Respondent: Ginsburg, Kagan, and Sotomayor

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A truly unusual coalition: Predicting Garza v. Idaho

Back in late October last year, the Court heard argument in Garza v. Idaho on whether the “presumption of prejudice” for ineffective assistance of counsel should apply when a criminal defendant instructs his counsel to file a notice of appeal but counsel decides not to do so because the defendant’s plea agreement included an appeal waiver. In a time where pleas account for approximately 97% of resolutions of criminal defense matters, and when appeal waivers are increasingly demanded by prosecutors, the case has the potential to offer one small procedural protection in a context in which the usual procedural protections mostly do not apply. Garza v. Idaho also will potentially reveal some unusual coalitions among the justices, and offer an opportunity to learn more about the views of the Justice whose voting record we know least about, Justice Kavanaugh.

Our prediction is that any day now we may see the newest conservative justice cross the metaphorical divide and vote with his liberal brethren in Garza. Here is our prediction:

Supreme Court Oral Argument Prediction for Garza v. Idaho based on the oral argument of October 30, 2018.
Supreme Court Oral Argument Prediction for Garza v. Idaho based on the oral argument of October 30, 2018.

Elsewhere, one of us (Jacobi) has argued that what are often called “unusual coalitions” are not so unusual. Cross-ideological coalitions often occur where the rift is between pragmatists—such as Justice Breyer on the left and Justice Alito on the right—and formalists— most notably Justice Ginsburg on the left and Justice Scalia on the right.

Garza is interesting because, based on our prediction, the case seems set to bridge both the liberal-conservative and the formalist-pragmatist divide. It has pragmatists such as Breyer joining with formalists such as Justice Gorsuch, both seemingly favoring the pro-defendant side.

The central issue in Garza is the correct application of an earlier Supreme Court case, Roe v. Flores-Ortega. Tellingly, Ginsburg and Breyer split in that case—Breyer opting for a case-by-case approach, and Ginsburg joining a dissent in favor of an across-the-board rule.

It appears that in Garza, that split among the liberals is likely to recur. Breyer appears to be sitting strongly in Petitioner’s camp, whereas Ginsburg’s first question suggested that her preference for rules may be more determinative for her here than her usual sympathies for criminal defendants, asking whether the defendant isn’t trying to have his cake and eat it, too.  If we drew a map of the justices along both the liberal-conservative and the formalist-pragmatist dimensions, Ginsburg and Alito would occupy opposite corners, not just opposite sides. But in this case, Alito cross-referenced Ginsburg in the oral argument, something that we have shown to be a sign of likely coalition partners.

And where is Kavanaugh in this unusual mix? In Garza, the Courtroom heard Kavanaugh emphasizing practical concerns. He stressed both that an appeal waiver gives up very little in reality, and that the circuits that have applied a presumption of prejudice have not shown any serious problem. Eventually, he drew an acknowledgment from Respondent Idaho’s advocate that there would be no meaningful practical harm if the state lost on this question. In contrast, Gorsuch asked a series of questions that all had a formalist bent, hinging, for example, on whether a right was statutory in nature, and what the traditional division of decision-making responsibilities is between attorney and client. The two conservatives seem set to agree in ruling in favor for Petitioner, but for very different reasons.

It seems understandable to us that Petitioner could win on both formal and pragmatic grounds. Formally, if it is acknowledged, as almost everyone at the argument was willing to do, that there are some rights that are unwaivable—a plea waiver could surely not prevent an appeal for gross prosecutorial misconduct, for example—then which rights are waived in any circumstance is a question that must have some ambiguity, and thus require legal analysis. Consequently, it cannot be such an obvious question that an attorney can properly fail to respond to his or her client’s expressed desire to challenge. More pragmatically, Flores-Ortega emphasized that the client retains the choice over fundamental matters such as whether to appeal, and last year’s McCoy v. Louisiana embraced the client’s autonomy, even if the attorney in good faith believes it better to concede guilt in order to avoid the death penalty. Similarly, here, whatever an attorney may think of the potential foolishness of jeopardizing a favorable plea deal by appealing a potentially already waived right, it is the client’s choice to make that bad decision. The majority of the Court seemed to be saying that the Court already has practical a solution to the attorney’s dilemma: the attorney can always choose to file an Anders brief, no harm done.

Interestingly, the Court’s two newest conservative justices seemed willing to consider these arguments, even though they cut across the traditional ideological conservative favor for the prosecution. In contrast, the Court’s more senior conservatives seem unlikely to budge from that position. In the case of Thomas, like Ginsburg, this can be explained in terms of formalist methodology. In the case of Roberts and Alito, two of the more pragmatic justices, that decision is harder to square other than in terms of ideological preferences.

Prediction: 5:4 for Petitioner

For Petitioner (Garza): Breyer, Kavanaugh, Gorsuch, Sotomayor, Kagan

For Respondent (Idaho): Alito, Ginsburg, Roberts, Thomas

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Graveyard Takings Case Rises From the Dead For Reargument

Knick v. Township of Scott, Take #2

When the Supreme Court called for re-argument in Knick v. Township of Scott—on the metaphysical constitutional law question of exactly when a takings claim comes into being—it seemed likely that the Court had been set to split 4:4. The re-argument was presumed to be largely for the benefit of giving newly minted Justice Kavanaugh the power to cast the decisive vote.

A Clarifying Re-Argument

The re-argument in Knick v. Township of Scott was clarifying. So much so that we wonder whether every case should be argued twice! In our initial analysis of Knick, we predicted a 4:4 split, but there was considerable ambiguity about the position of a number of the justices, as the figure below replicates.

Supreme Court Oral Argument Prediction for Knick v. Township of Scott (October 13, 2018).
Our earlier Supreme Court Oral Argument Prediction for Knick v. Township of Scott based on the oral argument of October 13, 2018.

As we discuss below, the advocacy in Knick II was much better, to the point where even though we were still unconvinced by Petitioner’s advocate, J. David Bremer, we at least understood what he was trying to say this time. In addition to the advocates being clearer, the positions of the justices seemed to clarify a great deal.

Our Supreme Court Oral Argument Prediction for Knick v. Township of Scott based on the reargument of January 16, 2019.
Our Supreme Court Oral Argument Prediction for Knick v. Township of Scott based on the reargument of January 16, 2019.

Not surprisingly for a case pitting individual property rights against government regulation, our model of Knick II suggests a mostly liberal-conservative split. However, there are some interesting shifts from the first argument.

In particular, Justice Breyer has moved from the 50/50 column to the clearly pro-Respondent column, and Chief Justice Roberts appears to have switched sides entirely. Also, Justice Alito’s strong support for the Petitioner was clearer on the numbers in the second argument, although, as we had mentioned in our previous post, it was always clear in substance.

Despite his apparent switch, we are not sure we believe the model’s prediction for Roberts. He seemed to be asking pointed questions of Petitioner initially, but after some tough questioning of Breemer by Breyer, Roberts — like Alito in the initial argument — jumped in to help the advocate out by asking friendly “questions” and leading the discussion back on track.

We think Roberts is likely genuinely conflicted over this case. As the head of the federal judiciary, he has little interest in flooding the federal courts with state takings claims where federal judges will have to opine on state property law, yet he is philosophically inclined to a pro-property and anti-regulation position. We don’t expect the Chief to be as concerned for the “dignity and sovereignty of the States” in this case as he was in Shelby County v. Holder (2013). But then again, why a federalist would caste a cynical eye over the congressional record that repeatedly reauthorized the coverage formula for the Voting Rights Act, but then want to remove every mundane question of state property law to the federal courts, is hard to fathom.

Based on the substance of his questions and comments, we also think that the model may be overstating Breyer’s pro-Respondent leaning. Like Roberts, but for different reasons, Breyer was also conflicted about the issues presented in this case. Breyer was concerned for individuals caught in a Catch-22 situation created by the Court’s own precedent in Williamson County. Under Williamson County, the property owner who believes that a state regulation intruded upon her rights to such an extent that it constitutes a “regulatory taking” has no claim for the violation of her rights until she has pursued a claim for compensation in state court and been denied. This makes sense because the Takings Clause is violated not by takings as such, but by takings without just compensation. However, Williamson County creates a Catch-22 for plaintiffs because once they have argued their case in state court, the doctrine of issue preclusion prevents them from re-litigating the same takings question in federal court.

This Catch-22 obviously does not sit well with Breyer, but like Roberts, he is a pragmatist little attracted to the potential flood of premature local and state takings claims inundating the federal courts.

When this case was scheduled for reargument, it seemed inevitable that Justice Kavanaugh would cast the deciding vote. In theory, an ultra-conservative, Federalist Society approved justice would be expected to reflexively side with the property owner in a case like this, but Kavanaugh’s position was a little hard to read. When Justice Gorsuch was in a similar position in the Janus case, he said nothing. In Knick II, Justice Kavanaugh had quite a lot to say, but he seemed to have issues with both sides of the argument. Our model, estimates that he is 57% likely to vote for Respondent, but that is basically a toss-up.

Our Prediction

Justice Breyer spent much of the argument searching for a reasonable middle ground that would address the Williamson County Catch-22 without making the federal courts the first stop for every takings challenge to state and local government property regulations. We think that Breyer will hold that a takings claim is complete for the purposes of Section 1983 when a regulation goes into effect without a reasonable mechanism to determine whether compensation is owed, and that somehow the usual rules of issue preclusion will not apply to plaintiffs who exhaust their state remedies. How many votes this opinion will attract is far from certain, but we do think that the middle position of leaving Williamson County intact with some softening on issue preclusion might attract the votes of Justices Kagan, Sotomayor, Ginsburg, and just possibly Roberts and Kavanaugh. Alternatively, we could see multiple opinions. Justices Alito, Gorsuch, and Thomas are a lock for Petitioner.

Advocate Performance

As a final note, the next figure shows the cumulative word count for the justices as a group and for each advocate.

Cumulative word count in Knick v. Township of Scott (January 16, 2019).
Cumulative word count in Knick v. Township of Scott (January 16, 2019)

The comparison between Petitioner’s advocate and the Solicitor General who was also on the side of the Petitioner is quite telling. As we discussed in a previous post, the Court tends to give the Solicitor General and even state solicitors general much more deference than regular advocates. In this case, despite his improvement from Knick I, Breemer still struggled to get a few words in between the justices. In contrast, Gen. Francisco, who was exceptional in both arguments, was allowed to talk for the majority of his allotted 10 minutes. Sachs for Respondent was also very good in the second argument and seemed to get a reasonable chance to make the points she needed to make.

Prediction:

For Petitioner Knick: Alito, Gorsuch, Thomas, Kavanaugh

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

Most likely to switch: Kavanaugh, Roberts

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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 and 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

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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