The Supreme Court eats its copyright vegetables

Listening to Tuesday’s argument in Fourth Estate Public Benefit Corp. v., 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.,  January 8, 2019) (summarized in the text)
Supreme Court Oral Argument Prediction for Fourth Estate Public Benefit Corp. v., 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.


Petitioner: Sotomayor, Kagan, Roberts, Breyer, Thomas, Alito, Gorsuch, Kavanaugh, Ginsburg
Respondent: none
Most likely to switch: Ginsburg, Kavanaugh, Gorsuch

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.  


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.  


Petitioner: Gorsuch, Ginsburg, Sotomayor, Kavanaugh, Kagan

Respondent: Alito, Roberts, Breyer, Thomas

Most likely to switch: Kavanaugh, Kagan, Breyer

Timbs forecast: Many roads to incorporation

In Timbs v. Indiana, the Court saw a particularly lopsided oral argument in favor of Petitioner, who argued that the  Eighth Amendment’s excessive fines clause is incorporated against the states under the Due Process Clause of the Fourteenth Amendment (or alternatively, the Privileges and Immunities Clause).

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 less than $1000. 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 washow 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 bothat the federal and state level.

ScotusOA Predictive Model for Timbs v. Indiana

Model predictions for Timbs versus Indiana showing votes likely in favor of Petitioner and respondent.  Ranging from Gorsuch 95% Petitioner to Roberts 93% Respondent.
Supreme Court Oral Argument Prediction for Timbs v. Indiana (November 28, 2018)

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.

Prediction: 8:1 or 9:0 for Petitioner, Timbs

Most likely to switch: Alito

Visualizing the content of justices’ and advocates’ cross-references

In our previous two posts (this one and this one), we examined the implications of justices cross-referencing other justices at oral argument. In this post, we take the analysis a step further and focus on the content of those cross-references.

The figure below is a word cloud derived from every sentence in the Supreme Court oral argument transcripts from the 1985 to the 2017 Terms in which one justice refers to another sitting justice by name. (We also treated references to “the chief” and “the Chief Justice” as a reference to Rehnquist or Roberts, depending on the era.) The word cloud provides a visualization of the relative importance of the 100 most frequent words in that set, excluding common words such as and, the, it, to, …

Supreme Court Oral Argument, 1985 – 2017 Terms: Justice cross-reference word cloud 

Word clouds are the text mining equivalent of a Rorschach test. The frequency of each individual word in a “bag of words” is of course an objective fact; but the significance each viewer gives to that fact depends on his or her expectations. Our interpretation of the word cloud above is that when justices are referring back to other justices in the modern era, they are overwhelmingly attempting to go back to a specific question raised by that justice. “Question” is the dominant token in this word cloud, occurring more than twice as often as the next two tokens, “answer” and “think.” Likewise, “answer” suggests a reference is being made to an earlier question; “think” is more generic.

Supreme Court Oral Argument, 1985 – 2017 Terms: Advocate-justice cross-reference word cloud 

Looking at the same visualization for advocates in the above word cloud, we see questions are still important, but not so clearly dominant. In the advocate word cloud, “question” is only the third ranked token, after “think” and “court.”

Previously, we have shown that the modern era of oral argument is defined more by comments than by questions; we have also shown that questions are more often asked of one’s friends, and comments are put to one’s foes. Finally, we have shown that judicial cross-references are generally made between two justices who ultimately agree with one another in the case at hand. As such, it follows logically that justices’ cross-references tend to focus substantially on fellow justices’ questions. This content analysis further buttresses this prior evidence of the relationship between questions and agreement, comments and disagreement, and judicial cross-references and agreement.

Cross-referencing one’s friends: A universal pattern among the justices

In our previous post, we showed that when one justice refers to one another by name at oral argument, it usually signals agreement. We also showed the practice of justice name checking each other has increased over time. The next natural question is whether this strategy is one utilized by all of the justices or only a select few. We might expect that there would be significant differences amongst the justices, since previously we observed significant variation in naming patterns among the justices when referring advocates. Do the same patterns emerge when justices use each other’s names?

Which justices cross-reference the most?

To explore these questions, the following table shows the cross-reference tendencies of a selection of justices serving from 1985 to 2017.

Speaker Makes Reference Is Referenced Agreement Ratio
Alito 0.48 1.13 2.60
Breyer 0.78 2.86 2.64
Ginsburg 0.77 1.69 2.77
Gorsuch 2.13 0.05 1.55
Kagan 1.47 0.90 3.46
Kennedy 2.05 1.30 2.71
O’Connor 0.29 2.22 4.05
Rehnquist 0.82 1.04 3.05
Roberts 1.04 1.12 3.22
Scalia 0.57 2.51 2.43
Sotomayor 1.62 0.67 3.41
Souter 1.47 0.53 3.02
Stevens 0.88 1.54 1.62
Thomas 0.76 0.02 3.00

The first column of the table above shows the rate per thousand words by which each justice references another justice. The results are very different for which justices cross-reference their colleagues than the advocates. Justices Gorsuch, Kennedy, Sotomayor, Souter, Kagan, and Chief Justice Roberts lead the pack in naming their brethren more than once per thousand words. In contrast, when using the names of advocates, Kagan, Rehnquist, Ginsburg, Scalia, and O’Connor make up the top 5. Only Kagan is on both top referencer lists. Kennedy, second only to Gorsuch in judicial cross-references, was barely discernible when measuring the use of advocates’ names. Clearly, then, using names serves a very different function when the justices are referring to colleagues than when referring to advocates.

Which justices are referenced most often?

The second column shows the tendency of each justice to be referred to by another justice. Some interesting patterns emerge here, too. First, Breyer and Scalia are way ahead of the others on this dimension. This could be because, as one of us (Jacobi) has argued elsewhere, their ideological and methodological distance led to such intense disagreements that their mutual interruptions dwarfed any others between any judicial pair. If that is what is driving these two justices’ high rates of cross-references, it would suggest that sometimes cross-references do indicate disagreement. However, it is also possible that these two justices constitute the contrasting personifications of not only liberal and conservative ideology but also of their methodologies, since Breyer and Scalia have each written influential books on their very contrasting constitutional views.

In fact, the data supports both of these interpretations. With 235 cross-references, Breyer referenced Scalia far more than he referenced any other justice—other conservatives, such as Alito and Roberts, were referenced by Breyer only 77 and 26 times, respectively (although they served with Breyer for less time). Similarly, Scalia most often referenced Breyer, with 182 references; in contrast, he referenced Ginsburg only 94 times, despite serving one year longer with her, and referenced Stevens 116 times, while serving even longer with him. Scalia and Breyer were exceptionally focused on each other, and seldom for reasons of agreement.

Yet, unlike with interruptions, Scalia and Breyer did not leave the other justices in their wakes. Kennedy was an active and bipartisan cross-referencer, invoking Roberts 239 times, Ginsburg 204 times, Breyer 201 times and Scalia 239 times. Other high pairings were Stevens referencing Scalia, at 225 times, Souter referencing Scalia, at 247 times, and Souter referencing Breyer, at 227 times. Significantly, though, Kennedy’s references to Ginsburg and Roberts were the only instances of any justice other than Breyer or Scalia being referenced more than 200 times by any other justice. Scalia and Breyer were exceptional not only in referencing each other, but in being referenced by others. As such, this supports the idea that these two justices’ high reference rates are a sign of their influence, even more so than the medians on the Court during this time, Kennedy and O’Connor.

The universality of cross-referencing one’s friends

The third column shows what we call “the agreement ratio”—the rate at which a justice is referenced (column 1) where that justice and the referencing justice are in agreement versus where they disagree (it does not relate to column 2). This is the most striking result: every single justice, even Justice Thomas, who talks so infrequently, displays the same trend, of cross-referencing other justices with whom the justice eventually will agree in the case in which they make the cross-reference. Once again, then, we have a potentially powerful predictor of eventual outcomes in Supreme Court cases, stemming from in-depth analysis of what happens in the oral argument of any given case.

Altogether, we can see that all of the contemporary justices cross reference each other overwhelmingly when they are in agreement. But the consistency only applies to doing the referencing: when it comes to being referenced, there are tiers of influence among the justices. The justices cross-reference selectively, particularly cross-referencing Justices Breyer and Scalia, two of the leading thinkers on the contemporary Court of their respective ideologies and methodologies.