– Revisiting American Needle, Graham v. Florida, Comstock, and Berghuis

June 2nd, 2010

The Supreme Court is headed down the home stretch. Of the 86 cases argued during the October 2009 term, 59 have been decided and only 27 are remaining. While we are still waiting for results the biggest cases of the term, including McDonald v. Chicago, Christian Legal Society v. Martinez, and Doe v. Reed, the Supreme Court handed down several significant cases in May: American Needle v. NFL, Graham v. Florida, Carr v. United States, Berghuis v. Thompkins, United States v. Comstock, and Levin v. Commerce Energy. In this post we will revisit our predictions, and compare them to the outcomes We will use our standard measures to explain how confident we were of our decisions, and how accurate our forecasts were.

Case ANI Graham Carr Berghuis Comstock Levin
Outcome Reverse


Reverse 50% Reverse 43% Reverse 64% Reverse 38% Reverse 45%
Outcome CI +/-10.71 % (99%) NS NS +/- 10.86 % (95%) +/- 11.86 % (99%) NS
Correct Split 24 23 10 16 10 7
Roberts 1.25 +/- .24 1.34 +/- .21 1.24 +/- .31 1.1 +/- .3 1.23 +/- .26 1.29 +/- .4
Stevens 1.84 +/- .38 1.09 +/- .19 1.39 +/- .38 1.26 +/- .42 1.74 +/- .4 1.52 +/- .5
Scalia 1.16 +/- .23 1.02 +/- .18 1.18 +/- .3 1.08 +/- .29 0.96 +/- .23 1.29 +/- .42
Thomas 1.05 +/- .22 1.03 +/- .18 1.1+/- .29 1.1 +/- .3 0.91 +/- .23 1.29 +/- .42
Ginsburg 1.86 +/- .38 1.08 +/- .19 1.58 +/- .4 1.48 +/- .46 1.67 +/- .39 1.35 +/- .47
Breyer 1.74 +/- .37 1.14 +/- .19 1.53 +/- .39 1.63 +/- .48 1.79 +/- .4 1.39 +/- .48
Alito 1.07 +/- .22 1.1 +/- .19 1.06 +/- .29 1.06 +/- .29 1.01 +/- .24 1.21 +/- .41
Sotomayor 1.92 +/- .38 1.21 +/- .2 1.42 +/- .38 1.48 +/- .46 1.76 +/- .4 1.22 +/- .45

American Needle, a significant antitrust case, asked whether or not the NFL and its member teams counted as one entity for the purposes of merchandise licensing. The court, in a unanimous decision, reversed the 7th Circuit’s ruling that they were one entity and exempt from the Sherman Antitrust Act. Only 37% of our members predicted the reversal, and out of approximately 200 predictions, 24 got the split correct also. The SMRs for the justices indicate there was going to be a consensus, even if the direction was wrong. One easy explanation is that the majority of users thought that baseball’s antitrust exemptions would be precedential instead of a characteristic peculiar to America’s Pastime. Even in that consideration however, there is not much of an opportunity for partisan division in this opinion, although our statistics do show that there was no particular support of monopolies among the different justices and ideologies.

Graham addressed whether or not a life sentence without parole was cruel and unusual punishment for a minor who committed non-homicide offenses. The court, in a 6-3 reversal, held that it was cruel and unusual punishment. Our members were in a dead heat between reversal and affirmation, meaning that our statistics were not conclusive one way or another. Only 23 users guessed the correct split, which is a larger percentage of total votes than in American Needle. However, our SMRs are useful in that they indicated Roberts might join in a decision with Kennedy and the liberal justices. As this case was very controversial and decisive, the ambiguity of our predictions in regards to the disposition is understandable, while our other statistics still provide useful information for predicting Chief Justice Robert’s curious vote by joining the majority.

The results for Carr, Berghuis, Comstock, and Levin, after the jump.

Carr deals with whether or not sex offenders were required to register if their offense occurred before the passage of SORNA. The court, in considering both the statutory issues and the ex post facto nature of the law, overturned the 7th Circuit in a 6-3 decision. A minority of users (43%) predicted the reversal—only 10 predicted the split—but it was not statistically significant due to the number of votes. The SMRs however indicate a likelihood of liberal justices to create a larger majority decision, while Thomas and Alito had the lowest SMRs (although not significant). In this case, the oddity was Ginsburg’s presence in the dissent, which was not predicted by the SMRs since her score was significantly above one. Given the tension between the strong law and order mentality and constitutional constraints in this case, the decision cannot be sorted according to a simple analysis of ideology. It does seem that the extra fold in this case was enough to throw off a portion of user predictions however.

Berghuis, also a criminal case, deals with the interesting situation where a defendant was informed of his Miranda rights, but did not invoke them nor waive them. In dealing with the third path where there is usually a yes or no answer, the court determined that a failure to invoke was a waiver in a 5-4 reversal. In this case, 64% of predictions held out for the reversal, which was statistically significant at a 95% level. 16 users predicted the correct split, reaching a percentage close to that of Graham. The SMRs indicate that the court’s decision would fall mainly along ideological lines. Both Ginsburg and Sotomayor had SMRs significantly above one, but only weakly so, while Breyer was the wild card with a higher SMRs. Overall however, it seems that ideology was a very strong indicator for how this case would turn out, and served those users who relied on it well.

Comstock considered whether that indefinite civil confinement of sexually dangerous offenders was constitutional. The court agreed with the government’s position in this case, overturning the 4th Circuit’s decision that Congress overstepped its bounds in a 7-2 decision. Although only 38% of our users predicted a reversal, 10 users did predict the correct split. Moving to the SMRs, it seems that our users’ predictions of individual justice behavior were much more precise. The liberal justices all had SMRs significantly above one, indicating a possibility of a broad majority, which came about, while both Thomas and Scalia had the lowest SMRs (although they were not significantly lower than one). This case serves as an important reminder that while ideology is typically divided into conservative and liberal dimensions, these categories are not monolithic. Although many conservatives do not like granting government more power under the necessary and proper clause, there is a strong law and order contingent that advocate more government power in criminal cases. Comstock serves as a ideological division played out in Supreme Court proceedings as shown by the votes of the conservative justices.

Our final case, Levin, deals with whether or not the federal courts have jurisdiction over constitutional claims in a tax dispute when the tax assessment is not challenged, and the petitioner desires a specific exemption as a remedy. In a unanimous decision, the court reversed the 6th Circuit’s determination, and held that the jurisdiction was barred. 45% of our users predicted the reversal, which given the total predictions of around 50, was not strong enough for the results to be significant. Although this might indicate that the results were wrong, it is important remember that only 3 predictions separated an overall affirm from an overall reverse. As for the SMRs, they indicate that most of the justices would conform to ideology, although this is also further complicated by the number of predictions. However, one major factor that inhibited a strong prediction pool one way or the other is that this was a jurisdictional case involving constitutional claims. Although the Constitution does establish some areas of jurisdiction, the majority of jurisdictional issues form their own body of statutory and rule-based law. Because of its technical nature, and lack of a strong constitutional claim, this case was much more difficult for users to predict.

This post was co-authored by Josh Blackman and Corey Carpenter.