Predictions of the 10th Justice: Forecasting the Swing Vote of Justice Kennedy.

December 3rd, 2009

Welcome to the second installment of Predictions of the 10th Justice, brought to you by The league has over 1,800 members, who have made predictions on all cases currently pending before the Supreme Court. Recently, Justice Stephen G. Breyer was asked in an interview about His response, “I don’t think I will bet on it.”

In this feature, we try to predict the votes of the decisive swing-vote on the court, Justice Kennedy. We will look at four important cases where Justice Kennedy is likely to cast the deciding 5th swing vote, and compare the predictions of the faithful to the mathematical precision of Professor Ayres’s “Predict Justice Kennedy’s Vote” Program.

Professor Ayres “Predict Justice Kennedy” program, based on a 2002 Columbia Law Review article, attempts to forecast Justice Kenendy’s vote based on (1) ideological direction of lower court decision (broadly defined as either Conservative or Liberal), (2) circuit of origin of lower court decision, (3) chief subject matter of the case, (4) argument for unconstitutionality, (5) identity of main petitioner, and (6) identity of main respondent. We recognize these labels are overbroad and are often imprecise, but it provides a helpful way to categorize cases. If there is any disagreement about the categories we select, input your determinations into the applet and compare with the numbers to see if there is any difference.

The first case we consider is Maryland v. Shatzer, which considers whether or not police are barred from questioning a criminal suspect who has invoked their right to counsel when the interrogation takes place nearly three years later. The Maryland Court of Appeals held that once the right to counsel is asserted, the suspect cannot be re-interrogated until he is provided with counsel or voluntarily initiates communication. The lower court decision seems to be more liberal than conservative because it reinforces the rights of suspects. Since the program only considers Federal Circuits, we will input Maryland as being in the 4th Circuit, and the subject matter of this case would fit neatly under criminal procedure. The appellant is the State of Maryland and the appellee is a criminal defendant. The program predicts that Justice Kennedy will vote to affirm the lower court’s decision.

The second case we consider is U.S. v. Stevens, which considers whether a statute banning depictions of animal cruelty is facially invalid under the Free Speech Clause of the First Amendment. The 3rd Circuit held en banc that the law was an unconstitutional restriction as a content-based restriction on protected speech. While this case was tougher to categorize into a liberal or conservative category, we decided on “liberal,” as this represents a contest between strong liberal ideas (animal rights and restricting types speech that are considered socially undesirable). It was heard in the 3rd Circuit, and primarily concerned the 1st Amendment. The main petitioner is the United States, while the respondent was a criminal defendant who raised the constitutionality issue. The program forecasted that Justice Kennedy would affirm the lower court’s decision.

The third case we consider is Bloate v. U.S., which considers whether additional time granted at the request of a defendant to prepare pretrial is excludable from the time within which trial must commence under the Speedy Trial Act. The 8th Circuit upheld a lower court decision excluding the pre-trial motions time period for the purpose of a speedy trial. Although the decision is not strong for one ideology over another, it leans conservative by tightening standards on criminal proceedings, rather than dismissing cases on technicalities. Although it could have been a due process issue, the 8th Circuit and subsequent briefs mainly focused on criminal procedure aspects and did not raise a constitutional claim. The main petitioner is a criminal defendant, and the respondent is the United States. The applet predicts that Kennedy would affirm the lower court’s decision.

The fourth case we consider is Salazar v. Buono, which considers whether an individual has Article III standing to bring an Establishment Clause suit challenging the display of a religious symbol on government land and if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation. The 9th Circuit determined that transfer of the property to a private individual/organization would not end the “establishment” of religion. The restrictions on religious imagery in public owned areas fit squarely into liberal ideology, especially in the context of historical locations. The 9th Circuit decided the issue. We categorized the case as First Amendment. The main petitioner is a government official, and the respondent is an “injured” party arguing unconstitutionality. The program predicts that Kennedy would vote to affirm the lower court’s decision.

How do the members think Justice Kennedy will vote? Predictions of the 10th Justice  after the jump.

In Maryland v. Shatzer, 43% (123 out of 267 voting members) agreed with the program, and predicted that Justice Kennedy would vote to affirm the Lower Court.

In U.S. v. Stevens, 83% (168 out of 201 voting members) agreed with the program, and predicted that Justice Kennedy would affirm the Third Circuit. While predictions for Maryland v. Shatzer produced weaker results, a stronger agreement in this situation may indicate that certain criteria are clearer predictors of behavior and observers of the Court pick up on them much more easily.

In Bloate v. U.S., 76% (61 out of 80 voting members) agreed with the program, and predicted that Justice Kennedy would affirm the Eight Circuit.

In Salazar v. Buono, only 45% (48 out of 106 voting members) agreed with the program, and predicted that Justice Kennedy would affirm the Ninth Circuit. While the difference between the two predictors is murky, FantasySCOTUS predictions are much more flexible since they are not subject to the “category” constraints the program uses and would probably be the more accurate indicator in this situation.

Overall, the contest between the two predictors does show an important application of FantasySCOTUS: a baseline for evaluating predictive models of Supreme Court behavior. In all four cases analyzed, a majority, or near-majority agreed with the forecasting program. This shows, anecdotally, that casual observers of the court have internalized the intricacies of the jurisprudence of Justice Kennedy, and can accurately match the mathematical precision of Professor Ayers’s model.  While voting is subject to all the inconsistencies and vagaries of public opinion, it does provide an important baseline for comparing “conventional wisdom” to complicated and sophisticated models. By continuing to compare FantasySCOTUS predictions with models, the models can be refined and improved.

Many thanks to Corey Carpenter for his assistance with the Predictions of the 10th Justice.