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FantasySCOTUS Predictions: Affirmative Action, Corporate Torture, Dog Sniffing, and International Wire-Tapping
The Supreme Court has only decided nine cases this term, and is on pace to decide at least sixty-five more. In this column, the FantasySCOTUS Prediction Tracker will offer predictions for four of the biggest cases argued so far:
- Fisher v. University of Texas at Austin (affirmative action)
- Kiobel v. Royal Dutch Petroleum (corporate torture)
- Florida v. Jardines (dog sniffing)
- Clapper v. Amnesty International (international wiretapping).
With almost 400 predictions, Fisher v. University of Texas at Austin is heading towards a reversal of the 5th Circuit, with 61% of members predicting a reversal. This prediction is significant at a 99% confidence level (+/-8.26). Because Justice Kagan has recused, a 4-4 tie will affirm the lower court.
Affirmative Action, at least as we knew it under the Michigan Affirmative Action cases, is not long for the world.
|Roberts||82.7% Reverse||1.316||Yes (0.148)|
|Scalia||91.4% Reverse||1.450||Yes (0.155)|
|Kennedy||69.5% Reverse||1.104||No (0.135)|
|Thomas||88.1% Reverse||1.398||Yes (0.152)|
|Ginsburg||92.2% Affirm||0.179||Yes (0.069)|
|Breyer||88.1% Affirm||0.262||Yes (0.083)|
|Alito||86.3% Reverse||1.372||Yes (0.151)|
|Sotomayor||91.1% Affirm||0.186||Yes (0.070)|
All are statistically significant except for Justice Kennedy. The conservative justices are significantly above that predictions would follow the expected default majority, while the liberal justices are significantly below what predictions would follow their expected default minority opposition. In other words, these numbers reflect a statistically significant retrenchment between the ideological camps on the Court.
Kiobel, which was reargued from last year, considers whether Royal Dutch Petroleum, a corporation, can be held liable under the Alien Tort Statute for violation of the laws of nations.
With over 400 votes, it looks like the Supreme Court will scale back corporate personhood for purposes of liability under international law. Over 76% of predictions expect the Supreme Court to affirm the Second Circuit. This prediction is significant at a 99% confidence level (+/-5.47).
|Roberts||71.3% Affirm||0.946||No (0.11)|
|Scalia||67.5% Affirm||0.895||No (0.11)|
|Kennedy||74.9% Affirm||0.986||No (0.11)|
|Thomas||68.0% Affirm||0.901||No (0.11)|
|Ginsburg||55.3% Affirm||2.019||Yes (0.27)|
|Breyer||57.6% Affirm||2.104||Yes (0.27)|
|Alito||65.5% Affirm||0.868||Yes (0.11)|
|Sotomayor||54.3% Affirm||1.981||Yes (0.27)|
|Kagan||53.0% Affirm||1.933||Yes (0.26)|
Here, the high significant SMRs for the liberal justices indicate a high likelihood that they will join the conservative justices in an affirming majority. Indeed, there is even the possibility we get a 9-0 opinion to affirm, however on very narrow grounds to reach a consensus position. However, Alito’s SMR that is statistically significantly below 1 indicates that Alito may hold out from agreeing with the other justices in the majority. This will likely not be a divided 5-4 opinion, as some may have anticipated.
Does a drug sniffing dog smelling the front door of a suspected grow house without a warrant violate the Fourth Amendment? The FantasySCOTUS nose knows.
This canine case has over 130 predictions with 61% of members predicting the Supreme Court will affirm the Florida Supreme Court, and find there is no violation of the 4th Amendment. This prediction is significant at a 99% confidence level ((+/-9.09)).
|Roberts||50.4% Affirm||0.642||Yes (0.15)|
|Scalia||49.6% Affirm||0.807||No (0.17)|
|Kennedy||63.6% Affirm||0.853||No (0.17)|
|Thomas||46.5% Affirm||0.633||Yes (0.15)|
|Ginsburg||58.1% Affirm||3.687||Yes (0.66)|
|Breyer||59.7% Affirm||3.531||Yes (0.65)|
|Alito||48.8% Affirm||0.486||Yes (0.13)|
|Sotomayor||60.5% Affirm||3.500||Yes (0.65)|
|Kagan||58.1% Affirm.||3.438||Yes (0.64)|
In this case, the low SMRs for Roberts, Thomas, and Alito seem to indicate that they are likely to hold out from joining Scalia and Kennedy in a majority. However, the extremely high SMRs for the liberal justices indicate that they are highly likely to form a majority with Scalia and Kennedy.
Clapper presents a complicated fact pattern in which attorneys for Amnesty International allege that federal agents may have listened to their conversations with clients abroad. Though, this case turns on whether Amnesty has Article III standing to seek prospective relief because they have offered no evidence that any surveillance actually took place.
The Second Circuit ruled against James Clapper, the Director of National Intelligence. FantasySCOTUS predicts that the Supreme Court will not give the government a round of applause, and rule in favor of Clapper. With over 100 votes, 61% predict an affirmance.
|Roberts||50.4% Affirm||0.909||No (0.21)|
|Scalia||49.6% Affirm||1.143||No (0.24)|
|Kennedy||63.6% Affirm||1.208||No (0.25)|
|Thomas||46.5% Affirm||0.896||No (0.21)|
|Ginsburg||58.1% Affirm||2.360||Yes (0.43)|
|Breyer||59.7% Affirm||2.260||Yes (0.42)|
|Alito||48.8% Affirm||0.688||Yes (0.19)|
|Sotomayor||60.5% Affirm||2.240||Yes (0.41)|
|Kagan||58.1% Affirm||2.200||Yes (0.41)|
In this case the high significant SMRs for the liberal justices indicate a high likelihood that they will join the conservative justices in an affirming majority. However, Alito’s SMR that is statistically significantly below 1 indicates that Alito would hold out from agreeing with the other justices in the majority.
Prediction: The Supreme Court will affirm the lower court, and rule in favor of Amnesty International with a broad coalition of Justices, with Justice Alito most likely to write separately, or perhaps Justice Alito is assigned to write a narrow coalition opinion.
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-This post was co-authored by Corey Carpenter