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.
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
Prediction: 6:3 for Petitioners
For Petitioner: Alito, Gorsuch, Kavanaugh, Roberts, and Thomas. Breyer concurring.
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
Elsewhere, one of us (Jacobi) has argued that what are often
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
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-Ortegaemphasized
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
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
For Petitioner (Garza):
Breyer, Kavanaugh, Gorsuch, Sotomayor, Kagan
(Idaho): Alito, Ginsburg, Roberts, Thomas
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.
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.
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 Countyv. 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.
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
As a final note, the next figure shows the cumulative word count for the justices as a group and for each advocate.
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.
For Petitioner Knick: Alito, Gorsuch, Thomas, Kavanaugh
For Respondent Township of Scott: Breyer, Ginsburg, Kagan, Roberts, Sotomayor
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.
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.”
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).
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
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.
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.
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.
Petitioner: Sotomayor, Kagan, Roberts, Breyer, Thomas, Alito, Gorsuch, Kavanaugh, Ginsburg Respondent: none Most likely to switch: Ginsburg, Kavanaugh, Gorsuch
Unheralded case may be emblematic of the Supreme Court’s 2018 Term
Based on the ebb and flow of oral argument in Biestek v. Berryhill, we predict a formalist-pragmatist division between the justices, rather than one based upon the usual liberal-conservative fault lines.
Biestek was a relatively unheralded and unremarkable case about administrative procedure and the denial of disability benefits. The hearing generated very little press coverage and may have even seemed a little dull to spectators without a keen interest in the outcome or in administrative law. However, for this very reason, Biestek may end up being emblematic of the 2018 Term, a Term in which the Court appears to be trying to stay out of the limelight and avoid the impression that every case is a pre-determined political contest.
The results of our predictive model based on the oral argument transcript are shown in the figure below. The model captures the formalist-pragmatist division as reflected on the opposing views of conservative Justice Gorsuch and equally conservative Justice Alito.
However, the model does not capture every nuance of the argument.
“I have evidence, but it’s a secret”
Some additional background helps explain the issues. Biestek applied to the Social Security Administration for Supplemental Social Security Income and benefits in 2010. In a hearing to review the denial of his claim, a vocational expert testified that there were jobs available to Biestek in spite of his disability. The vocational expert based her testimony on private data that she refused to produce. Nonetheless, based on this secret evidence, the Administrative Law Judge (“ALJ”) found there was work available to Biestek and denied his claim.
The Sixth Circuit affirmed on the basis that the strict requirements of the Federal Rules of Evidence do not apply to Social Security disability proceedings. Petitioner acknowledges that the Federal Rules do not apply, but contends that the ALJ’s decision failed the substantial evidence threshold. Thus, the essential question in the case is whether a man should be denied disability benefits when the expert evidence against him is based solely on data that the expert declines to reveal.
Or, as Justice Gorsuch put it:
If we were in federal district court [and] if on the key issue in the case the evidence depended upon the testimony of an expert, and the expert said, ah, I’m not going to give you my underlying data, it’s secret, I don’t think we would hesitate to find that no rational jury could sustain a verdict in favor of the party propounding that expert. Why isn’t the same true here?
The arguments against the Petitioner are largely pragmatic. As Anthony Yang explained on behalf of the government:
Each year, there are about 2.6 million initial disability claims that are filed with SSA, and at the third level of review, the SSA conducts 670,000 hearings. That’s about 200 — 2500 a day. Over 1 million people are waiting for just a response for their hearing, and they wait, on average, about 605 days. There is no adjudicatory process on a scale comparable to this.
The Chief Justice and Justice Alito did not seem convinced that the secret basis of the vocational expert’s opinion was any great problem. Justice Breyer, on the other hand, had clear reservations about the reliability of the testimony of vocational experts but thought that this issue would be better addressed by a test case of some kind.
The case is hard to predict. Justices Gorsuch, Ginsburg, and Sotomayor seemed clearly inclined to the view that secret evidence was no basis for an administrative decision. However, Justice Kagan raised telling objections on both sides of the argument and Justice Kavanaugh’s limited comments to the Respondent did not contribute much.
The Supreme Court continues to ignore pressing social issues
There are many reasons why Petitioner Tyson Timbs is a sympathetic litigant, and why his constitutional argument is persuasive. He is the prototypical victim of the opioid epidemic: having become addicted to hydrocodone for foot pain, he took to dealing small amounts of heroin to fund his habit. He used his one considerable asset, a $42,000 SUV bought with money inherited from his father’s $73,000 estate, to drive to the sites of two deals of value $225 and $160. Timbs was convicted and put under house arrest, and subject to fines totaling $1,200. But the state of Indiana seized his $42,000 SUV as an instrumentality of the crime, subject to in rem forfeiture.
According to Indiana, there is no meaningful limit to stop police directly profiting from seizing cars used in drug crimes, or even cars going 3 miles over the speed limit. According to Timbs, the constitutional guarantee against excessive fines should be incorporated against the states because freedom from excessive fines is “fundamental to our scheme of ordered liberty.” This constitutional protection is vital with respect to fines because, unlike other forms of punishment, fines are particularly prone to abuse as a potential profit center for the state. Furthermore, as Timbs’ brief argues persuasively, such forfeitures have been used for centuries to oppress the poor, perpetuate Jim Crow long after the Civil War, and give problematic police departments, such as that in Ferguson, Missouri, a mechanism of harassing racial minorities.
Yet, as is so often the case in criminal procedure cases, few of these compelling arguments appeared to shape the justices’ inquiries in the case. Only Justice Sotomayor made passing reference to these pressing social concerns.
The real point of interest in the oral argument was how justices from various points on the ideological spectrum seemed to be converging on a decision in favor of Petitioner while maintaining starkly different motivations and reasoning. It was particularly fascinating to see that the differences among the conservative justices and among the liberal justices were more sharply drawn than the distance between the conservative and liberal camps.
A variety of ways of getting to a new state constitutional right
Among the conservatives, Justice Gorsuch and Justice Kavanaugh seemed to be competing as to who would come out swinging most against the state. Kavanaugh repeatedly asked a version of the question “aren’t all –all the Bill of Rights at this point . . . incorporated?” Gorsuch clearly won, however, immediately jumping into a 138 word monologue, demanding that Respondent advocate “at least agree” that the Excessive Fines Clause is incorporated against the states, and subsequently goading the advocate, asking if he “really wants” the Court to address a secondary question.
In contrast, Chief Justice Roberts and Justice Alito pushed hard against Petitioner’s argument, questioning whether any fine can be excessive in comparison to prison time. The figure below reflects this division, with Roberts and Alito favoring Respondent. However, there is reason to think that they may not vote that way: for institutional reasons, the Chief is unlikely to want to be on the losing side of a case recognizing a constitutional right. Also, by the end of the argument even Alito seemed troubled by the implication of Respondent’s position that individuals pursuing Second Amendment rights would have to establish each aspect of the right both at the federal and state level.
ScotusOA Predictive Model for Timbs v. Indiana
There was also division among the liberal justices, but over the reasons for and extent of support for Petitioner. As mentioned, Sotomayor did consider the practical reality of civil and criminal forfeiture; Justice Kagan, in contrast, repeatedly raised a question of great interest only to constitutional scholars: at what level of generality should a constitutional right be recognized? Justice Breyer raised strong institutional concerns with Petitioner’s position, particularly regarding the role of stare decisis and the logical conundrum of protecting against excessive fines given the lack of a meaningful proportionality requirement in sentencing. In contrast, Justice Ginsburg so clearly came to the aid of Petitioner’s advocate, Wesley Hottot, that he subsequently committed the faux pas of referring to her as having “assisted” him earlier. Based solely on the oral argument, one might think Breyer was a vote for Respondent, but although he was clearly weighing some broader institutional issues, our reading of Breyer’s constitutional theory leads us to the opposite conclusion. Breyer’s congenial verbosity makes him harder to predict than many of the other justices.
Unanimous and lopsided votes are difficult to predict
Thus, while the numbers show a 5:3 split in favor of Petitioner, we expect that the case will be much more lopsided, perhaps even unanimous, since even ultra-conservative, ever-silent Justice Thomas called for the Court to hear the issue. Very lopsided and especially unanimous cases are harder to predict on the numbers from oral argument: even if the justices all expect to vote in favor of one side, we would still expect them to talk during that advocate’s time, since modern norms of Supreme Court oral argument involve a lot of justice speech. This makes the numbers less reliable in lopsided cases, showing the importance of both qualitative and quantitative analysis. We do, however think that the figure reflects a real division between the justices, particularly between the Chief and Alito versus the rest of the Court. This division just may not be reflected in the final votes. We expect that either Roberts and/or Alito will vote for Petitioner on the question presented but write a narrowing concurrence.
The two Eighth Amendment cases show hard cases make for hard predictions
Bad facts make bad law. So too, hard cases make for hard predictions. The Court’s two current death penalty cases, illustrate both phenomena. But these cases also illustrate the added value of empirical analysis of oral argument over purely qualitative or impressionistic readings.
The Supreme Court’s two current pending death penalty cases both have very peculiar facts. In Bucklew v. Precythe, argued last week, the prisoner argues that execution by lethal injection would be cruel and unusual given his particular medical history. Madison v. Alabama, argued on October 2nd, presents the question of whether a prisoner can be executed for a crime he cannot recall.
The Supreme Court had the option of taking a case raising a question with potentially much broader significance for Eighth Amendment jurisprudence. Hidalgo v. Arizona challenged whether Arizona’s death penalty legislation insufficiently narrowed application of the ultimate punishment. True to form, the Supreme Court avoided that important question of the frequency of the ultimate punishment, and focused instead on two cases raising as applied challenges, with limited applications for the 2,743 people currently on death row.
Argument in Bucklew v. Precythe involved delving into the grisly facts of Petitioner’s medical condition and the painful possibilities involved in his execution. Along the way, the argument saw some unusual judicial behavior. Immediately, Justice Sotomayor began grilling Petitioner’s advocate for the lack of a clear record on those facts, and whether the horrific nature of his death could simply be avoided by the trach already installed in his throat.
Commentators on the First Mondays podcast suggested that this interplay may indicate that Petitioner’s advocate may have lost Justice Sotomayor, which would make it “tough” to win, given her general reliable pro-defendant vote. This much-qualified prediction misunderstands what is going on. Although Sotomayor was very active in questioning the Petitioner, and that level of activity often signals disagreement, she was even more active during Respondent’s time. Sotomayor spoke 17 times to Petitioner and 18 times to Respondent; but when she spoke to Respondent, she had much more to say—921 words versus 497 words. In spite of the opening salvo, by the end of the argument Sotomayor registered a significant disagreement gap in favor of Petitioner. Thus, even though she described herself as “upset” with Petitioner’s advocate, our analysis, represented in the figure below, predicts she is 90% likely to vote for Petitioner, and is the Justice most likely to do so.
Sotomayor normally reserves her toughest questions for the prosecution side in criminal cases—perhaps reflecting, as well as her liberal ideology, that as a former prosecutor herself she has particularly high standards for the profession. That fact made her sharp critique of the capital defendant seem more important than it really was. Our empirical approach to reviewing oral argument helps put episodes like this in a more balanced context and avoid salience bias (a recognized common behavioral irrationality that causes people to focus on prominent information and ignore potentially more significant but less noticeable contra-indicators).
A far clearer signal of a Justice breaking with expectations was Justice Kavanaugh. He spoke only to Respondent’s advocate and asked tough questions as to whether there was any limit on the potentially “gruesome and brutal pain” the state is permitted to impose in executing Bucklew, and demanded a yes or no answer from the state’s advocate.
In contrast, the numbers on Justice Gorsuch are likely misleading. He spoke only twice to Respondent’s advocate and once to Petitioner’s advocate, making his signals very weak. Equally importantly, both questions he put to Respondent’s advocate were open-ended questions asking him to get to a point he had said he would make—that is, a seemingly friendly inquiry. Given Gorsuch voted to deny the stay of execution, we expect he will join the other conservatives in voting with Respondent. (Although Justice Thomas was his normal reticent self, he too had joined the dissent from the stay of execution).
With Justice Ginsburg unusually silent (even before breaking her ribs), we can only go on her prior voting record, which is generally pro-defendant. All of this would lead to a prediction of a 5:4 vote for Petitioner, however the prediction depends on the untested vote of Justice Kavanaugh—a tough prediction, indeed.
Oral argument in Madison v. Alabama, on the question of whether someone who cannot remember the crime he committed due to multiple strokes, also involved descriptions of peculiar facts. According to Petitioner’s advocate, inmate Madison regularly soils himself because he cannot remember that he has a toilet in his cell. The law on the issue was as messy as the facts. The following was a typical confused interaction:
Sonia Sotomayor: Mr. Stevenson, part of the problem is the use of the word “loss of memory.” And I — in your briefs, you seem to go back and forth on this. Are you conceding that amnesia about the incident alone, where you can function in every other way in society, would you be incompetent then?
Bryan A. Stevenson: No.
Sonia Sotomayor: To be executed?
Bryan A. Stevenson: Yes, that’s right.
On another point Justice Alito complained: “No, I don’t understand — I don’t understand your answer.”
And Chief Justice Roberts questioned whether there was an issue at all in the case, saying to Petitioner’s advocate: “There are two questions. You concede on one, and the state concedes on the other.” Petitioner had conceded that simply not remembering the crime is not enough to avoid execution, and the state had admitted that if the person is incompetent, they cannot be executed.
The figure below shows our predictions for the case.
Thomas was silent as always and Gorsuch was silent in this case also. Furthermore, both Breyer and Roberts presented ambiguous signals. Again, Thomas, Alito, and Gorsuch had opposed the imposition of the stay, suggesting again support for Respondent. This time, however, Roberts had not joined that order. His far more mixed signal in this argument supports Amy Howe’s prediction that as Chief Justice, he “might have a greater incentive than his colleagues to avoid deadlocking on Madison’s case” (Kavanaugh was not yet on the Court when the case was heard) and so could provide the fifth vote for a very narrow victory for Madison by remanding the case back to state court to consider the specific question of whether Madison is incompetent because of his dementia.
We think this analysis makes sense of Roberts’ tentative signal. But we would go further and say that Roberts will only vote in favor of Petitioner for a very narrow ruling, otherwise he will vote for Respondent. We believe Roberts’ ambiguous signal indicates his concern over the potential for this second very specific medical circumstance to create an enormous slippery slope to a flood of future death penalty challenges. Whereas Bucklew’s case is limited to an n of approximately one, making it hard to justify the Court using one of its approximate 75 spots to effectively act as a court of last instance, in contrast, Madison’s case could drastically change death penalty jurisprudence. With death penalty appeals dragging the ordinary execution process out over decades, the chances of other inmates developing memory-related medical issues are very high. A broader ruling for Petitioner could spawn a tide of challenges that would make Atkins IQ challenges seem a narrow set. As such, we expect Roberts to either support a very narrow ruling for Petitioner or rule in favor of Respondent. The empirics indicate he is right on the borderline.
Thus, we predict a 5:3 win for Petitioner on narrow grounds, or a 4:4 default win for Respondent.
Prediction for Bucklew: 5:4 vote for Petitioner (Bucklew)
For Petitioner: Sotomayor, Kagan, Breyer, Kavanaugh, Ginsburg
For Respondent: Roberts, Alito, Thomas, Gorsuch
Most likely the switch: Kavanaugh
Prediction for Madison:
5:3 vote for Petitioner (Madison) and remand
4:4 vote for Respondent (Alabama)
For Petitioner: Sotomayor, Ginsburg, Kagan, Breyer, (Roberts)
In a just published article in the Boston College Law Review, Kyle Rozema and I show that interruptions between two justices at oral argument are significantly associated with voting disagreement between pair in the eventual case outcome. We show that on average, a given judicial pair is 7% less likely to vote together in a case where an interruption occurs between them at oral argument. This adds to the mounting evidence that interruptions constitute good predictors of voting outcomes in cases.
Not all justices are alike, but the pattern is clear
Kyle and I show that interruptions at oral argument, as in the many other areas where interruptions have been studied, capture a form of conflict between the justices. Whether interruptions cause ill will or reflect existing conflict, either way they provide a glimpse into otherwise hidden forms of disagreement between members of the Court. Of course, scholars have long recognized regular dividing lines among the justices, most notably ideological divisions, but those factors apply across all cases—we are able to show that interruptions in a given argument reflect an increased probability of disagreement in the case at hand, even accounting for more general ideological division.
The correlation between interruption and disagreement is not the same for all justices. In general a justice is more likely to disagree with someone who has interrupted them or whom they interrupted, but there is variation. The figure below shows the extent to which each justice is more likely to vote contrary to someone with whom they were involved in interruption in a given case. Points to the left of the zero line in the center indicate a greater tendency to agree, points to the right of the zero line indicate a greater tendency to disagree. All but four justices serving on the Court between 1960 and 2015 lie to the right of the zero line, being more likely to disagree with someone with whom they interrupt or are interrupted by.
Interruptions as conflict, and other theories
We show that a substantially and significantly significant relationship exists between justice to justice interruptions and ultimate disagreement between those justices in the case at hand: a greater probability of voting disagreement between justices of 7% based on one interruption is a very large effect. The question, then, is what is the mechanism of that disagreement?
But we also explore other theories. A second “exposure” theory would suggest that justices who speak more in a case might be more exposed to interrupting or being interrupted simply by virtue of taking up more airtime. A third “dissatisfaction” theory is that a justice is interrupting because he or she is at odds with the rest of the Court about the direction of the oral argument and the anticipated outcome of the case. For example, this may occur if the case is very salient to the individual justice but not necessarily salient to the rest of the Court. A fourth “difficult case” theory would suggest that interruptions are simply reflections of something about the case generally that is common to all justices, and cases with more disagreement are more prone to interruptions. In difficult cases, an interruption may not be specific to either of the justices involved in the interruption but is simply a response to the nature of the case itself
We find that the conflict explanation accounts for over half of the effect: the probability of two justices agreeing when one has interrupted the other in a case is reduced by over 4%, even after we have accounted for the other explanations. Exposure is the next most significant factor: a 10% increase in the time a pair of justices spend speaking decreases the likelihood of their agreement by 5.3%. We find no evidence for the dissatisfaction theory. We also find evidence for the difficult case theory: agreement between the justice-pairs is 1.3% lower when there is this kind of interruption. The effect of exposure and difficult cases, however, is less than the effect of conflict.
I wrote a post last Wednesday (on Halloween) all about the spooky metaphysics of deciding when a graveyard taking comes into existence and predicting a 4:4 split in Knick v. Township of Scott. The post was scheduled to go live at our usual time, Monday morning at 9am. However, on Friday the Court restored Knick to the calendar for reargument and directed the parties to file additional briefing. This order basically confirms our prediction that the case was a 4:4 split, although it is possible that some of the justices were genuinely undecided and thought additional argument and briefing could clarify matters.
The reargument order calls for briefing on the Petitioner’s argument in footnote 14 of their brief that there is a key distinction between actions of the responsible government entity at the time of the taking and a compensation order (or denial thereof) by a state court under an inverse condemnation action. Petitioner argues that her takings claim is ripe as soon as the Township required she dedicate a public easement without offering compensation.
I strikes me that the call for 10 additional pages of briefing is just papering over the current 4:4 split that presumably Justice Kavanaugh will resolve when the case is reargued.
The original post follows:
Just in time for Halloween
In Knick v. Township of Scott,the Supreme Court waded into the somewhat metaphysical question of when exactly a takings claim against a state comes into being and the important practical question of where such cases can and should be litigated. This case was argued on October 3rd, but we thought it was perfect for a Halloween themed post.
The Williamson County Catch-22
As the Knick case itself illustrates, plaintiffs who would prefer to take their takings cases to federal court can easily fall into in a Catch-22 situation. Petitioner Rose Mary Knick argues that a local cemetery ordinance compelling her to allow the public daytime access to a grave site on her property amounts to a Fifth Amendment taking unless compensation is forthcoming. The Catch-22 arises because under the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, Knick cannot pursue her federal Section 1983 claim until she has gone through the Pennsylvania procedure for seeking just compensation and been denied. However, because courts since Williamson County have applied issue preclusion to prevent unsuccessful state plaintiffs re-litigating the same question in federal court, once she loses in a Pennsylvania state court, she will no longer have access to federal court.
Ghost in the machine?
Our predictive models suggest that Chief Justice Roberts (75%), Justice Gorsuch (94%) and Justice Alito (67%) are solidly in the petitioner’s camp.
Knick v. Township of Scott Prediction Based on Supreme Court Oral Argument
It seemed clear at oral argument that the Chief could see the merits of both sides and was concerned about “the letters that we’re going to get from district court judges around the country who are not going to be very happy learning that they now have to adjudicate state inverse condemnation actions, which can be fairly elaborate.”
The model is understated in the case of Alito. True, Alito engaged with both sides of the argument, but his exchanges with Petitioner were almost entirely in the form of “That’s a good argument, but wouldn’t it be even better if you said it like this?” For example, about 10 minutes into the argument, Alito cut off Justice Kagan to say the following:
Samuel A. Alito, Jr.:
Let me see if I understand your claim, because a little — some of the questions and the discussion up to this point is a bit confusing to me. I thought your claim was that there is a violation of the takings clause and you can, therefore, bring a suit under 1983 when the state does something that constitutes a taking but at the same time says we’re not paying you anything for this. Now it’s not a question of when they would have to pay once they’ve admitted that there’s a taking, but when they do something that constitutes a taking, and they say, no, this isn’t a taking at all, and, therefore, you’re getting zero, which I understand to be your claim here, then you can go directly to federal court and bring an action under 1983. And to require you to go to state court before you do that is essentially to require you to exhaust state remedies before you can bring a 1983 claim, which is never required under 1983.
I thought that that was your argument.
J. David Breemer for the Petitioner could only agree.
Our predictive model counts only two clear votes for the Respondent, Justice Sotomayor (85%) and Justice Kagan (64%). However, even though our model suggests Justices Ginsburg and Breyer are leaning slightly in favor of the Petitioner, a vote for the Respondent seems just as likely. Based on his comments at oral argument, Breyer seems likely to vote for the Respondent and will leave Williamson County intact, but he will soften the effect of issue preclusion that creates the Catch-22.
The other federalism
Conservative justices sometimes care deeply about federalism and state sovereignty, but not so much when it comes to the authority of state courts to decide issues of state law. One of the striking things about the oral argument in Knick v. Township of Scott was that only Justice Sotomayor addressed the Petitioner’s most likely motivation for trying to keep her case in federal court.
Knick denies that there is a grave site located on her property; but she argues that even if there is, she loses an important property right if the state can compel her to grant public access during daylight hours. Assuming that the grave site exists (why take the case to the Supreme Court if it doesn’t?), one of the key questions on the merits of this takings claim will be to what extent Pennsylvania property law had always allowed for limited public access in a case like this. Sotomayor raised the question of whether the restriction was inherent in the property prior to the ordinance, describing it as the “whole issue.” She may have also been thinking that the real point of framing a case like this as a Section 1983 action is not to just to vindicate a federal constitutional right, it is to make the federal courts the final arbiters of Pennsylvania state property law.
The looming specter of a rehearing
By unwritten tradition, justices do not vote in cases for which they were not present at oral argument, and so Justice Kavanaugh should not break the 4:4 tie we predict. However, there is precedent for cases to be re-argued, particularly when otherwise the case is likely to split 4:4. But other cases in the past have simply been handed down with an even split by the original makeup of the Court. If Knick is reargued, and Kavanaugh has the deciding vote, judging by the apparent ideological split of the case in the first hearing, and the similarity between Kavanaugh’s and the other conservatives’ behavior at oral argument in the few cases he has heard so far, that could turn the outcome into a 5:4 decision for Petitioner Knick.
Knick v. Township of Scottprediction: 4:4
For Petitioner Knick: Gorsuch, Roberts, Alito, Thomas
For Respondent Township of Scott: Sotomayor, Kagan, Ginsburg, Breyer