The emerging formalist-pragmatist divide on the Supreme Court (Biestek v. Berryhill forecast)

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.

Supreme Court Oral Argument Prediction for Biestek v. Berryhill (December 4, 2018)

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.  

Prediction

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.  

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Petitioner: Gorsuch, Ginsburg, Sotomayor, Kavanaugh, Kagan

Respondent: Alito, Roberts, Breyer, Thomas

Most likely to switch: Kavanaugh, Kagan, Breyer