Dec 17, 2009

Posted in FantasySCOTUS

FantasySCOTUS.net Predictions of the 10th Justice: Citizens United v. FEC (Hilary Movie Case) Revisited

Welcome to the fourth installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 2,600 members, who have made predictions on all cases currently pending before the Supreme Court. Check out a recent CNN.com feature on FantasySCOTUS.net. Also note that our site was placed above stories about Justice Sotomayor and Chief Justice Rehnquist.

Tony Mauro at the Blog of Legal Times wrote an article about the Supreme Court’s delay in releasing an opinion in Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case. To help predict the case, Tony relied on several SCOTUS experts, and also asked our opinion. Interestingly, our data match the predictions of his SCOTUS experts.

Since our original predictions, our league has doubled in size and now has over 550 predictions for Citizens United. The Hillary Movie case is a showdown between free speech and campaign finance laws. In 2008, the D.C. Circuit ruled in favor of the FEC that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.

Out of 556 predictions, 67% predicted that the Supreme Court will likely reverse the lower Court, while 33% predicted that the Supreme Court will affirm the lower court’s decisions.

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The vast majority of members predict that the case will be a close 5-4 split. Two hundred and sixty-three  members voted for a 5-4 reversal, while 121 members voted for a 5-4 affirmance. This prediction of the league mirrors the predictions of close Court watchers. Very few predict that the case will be unanimous in either direction.

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But what about the Supreme Court’s long delay in issuing the opinion? Our predictions, after the jump.

According to our data, Chief Justice Roberts, Justice Scalia, Justice Thomas, Justice Alito, and Justice Kennedy are each predicted to be in the majority over 90%. Justice Stevens, Justice Ginsburg, Justice Breyer, and Justice Sotomayor, are all predicted to be in the minority over 90 percent. Based on our previous data, indicating a 67% chance of reversal, the 10th Justice predicts that the Court will reverse Citizens United 5-4, with Roberts, Scalia, Thomas, Alito, and Kennedy in the Majority.

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But what about the delay?

At the Volokh Conspiracy, Professor John Elwood writes:

“I imagine that the justices are having a lot of back and forth on circulating drafts. The principal opinion responds to a dissent, and the dissent then readjusts to respond to the principal opinion. Some of the cases that take the longest to be decided wind up having no majority opinion. It sometimes takes a while for it to become apparent that the justice assigned to write the opinion isn’t getting a majority, then the ‘lost vote‘ has to write his or her own opinion, and everyone else has to respond to that opinion.”

Are there likely any “lost votes” that may be causing the delay?

While Justice Kennedy tends to be the most elusive Justice to predict, 91% of those voting predict Justice Kennedy will be in the majority for reversing the opinion. It seems there are five solid votes for reversal.This suggests that while Justice Kennedy is committed to reversing the lower court, the Justice may have some disagreement over the nature, the scope of the reversal. This case has the potential to transform campaign finance law and the First Amendment. While the outcome may be decided, the delay can be attributed to the nature of the opinion.

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