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Mark Walsh interviewed me for a piece in the August ABA Journal concerning the Supreme Court’s practice of modifying opinions after they are issued. Oh, and they don’t tell anyone. And, they change doctrine, in addition to errors. Here are my two cents:

Josh Blackman, an assistant professor at South Texas College of Law in Houston and an observer of the Supreme Court, says he was shocked to read how significant some of the revisions to opinions have been.

“The article brought to life how common this is,” he says. “Especially when it’s not just Jane and Jill but significant changes in doctrine.”

 

After the initial panic over Halbig faded, I sensed this breath of relief from many. No worries they thought, the D.C. Circuit–with its newly-appointed “nuclear” Judges–will grant en banc review and fix this horrible mess from two Republican-appointed judges. But, as my friend Adam White points out in the WSJ, en banc review is no sure thing. In fact, the D.C. Circuit is known for not reviewing cases under en banc review, except under the most extreme circumstances. Adam notes that none of those requirements are met here:

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the D.C. Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig checks none of these boxes. It is a straightforward statutory interpretation case. The administration’s supporters seem to believe that Halbig has “exceptional importance” because the Affordable Care Act is exceptionally important to them and the panel’s decision was, in their eyes, wrong. But that is a dangerous interpretation of the standard, for reasons best stated by Judge Harry Edwards —the very D.C. Circuit judge who dissented from the panel decision in Halbig.

“Obviously, no judge agrees with all of the decisions handed down in the circuit,” Mr. Edwards wrote in a 1987 case involving the Department of Health and Human Services. But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that isindispensable to judicial decision-making” [his italics]. Rather, en banc review must be reserved for “the rarest of circumstances,” Mr. Edwards wrote, cases with “real significance to the legal process.”

Mr. Edwards played an important role in the court’s history on precisely this issue. In the 1980s, acrimony on the D.C. Circuit was well known. But in the 1990s, Mr. Edwards became chief judge and restored collegiality, in part by greatly reducing the number of en banc rehearings, to three a year in the 1990s from roughly six a year in the 1980s.

As we have dueling cert petitions, and petitions for rehearing en banc, I’m sure these factors are weighing on the D.C. Circuit judges now.

I’ve compiled a spreadsheet listing the 32 (and counting) Administrative Changes to the ACA. I attempted to identify primary sources (regulation or blog post as it were), the explanation of the delay, and news stories (mostly articles from NY Times and Washington Post). The Galen Institute provided a great starting point for the list. Several of these changes (several in blue) have resulted in litigation–Halbig/King, Sen. Ron Johnson’s suit in Wisconsin over Hill Staffers, and the recently field WV suit over the administrative fix. I will continue updating this sheet as time goes on, and the law continues to be modified. If I’m missing any, please add comments.

Dylan Matthews of Vox interviewed me and my co-author Mike Bommarito about our Supreme Court prediction model, developed also with Dan Katz.

We haven’t gotten nearly that far in predicting court cases. But three scholars — South Texas College of Law’s Josh Blackman, Michigan State’s Daniel Martin Katz, and Bommarito Consulting‘s Michael Bommarito —  have built a model that comes close. As Blackman noted in a blog post announcing the model, it “correctly identifies 69.7% of the Supreme Court’s overall affirm and reverse decisions and correctly forecasts 70.9% of the votes of individual justices across 7,700 cases and more than 68,000 justice votes.”

Dylan also highlights the nuanced manner in which we approach ideology.

The process seems extremely complicated, but Bommarito and Blackman note that you can still draw conclusions about the way the court behaves from it. For one thing, Bommarito notes that ideological variables seem to make a major difference, which seems to refute the naive view that the Court is somehow above politics. “If there were an argument ongoing between political scientists and lawyers as to what mattered, as to whether judges are really independent judicial reasoning machines on high, or whether they’re just political animals like anyone else, then in terms of the features that the model uses to successfully predict, it appears they’re just political animals,” he concludes.

Blackman caveats that a bit. For one thing, a lot of the Court’s decisions are uncontroversial 9-0 reversals of lower courts: a lower court got it wrong, every justice agrees about it, and they act together. And the model gets those right very often, and struggles with the one in three cases where the court ultimately affirms the lower court’s ruling:

The model can only do that well if it brings non-ideological variables into play. “The set of ‘case information variables’ — which includes the lower court where the case the originated, the issue, who the petitioner and respondent are, etc — contributed 23% of predictive power,” Blackman explains. “These were among the most predictive factors, and are factors that most people in the press don’t think about.”

All the same, if anyone still labors under the misimpression that the Court’s political views don’t matter, the model should give them reason to reconsider. Bommarito puts it in statistical terms: “The null hypothesis for legal academia is that ideology doesn’t matter; we’ve rejected that hypothesis.”

The most important element is the conclusion. Dylan really hits home where our research is leading.

From there, it’s on to lower courts. Supreme Court cases, while high-impact, are pretty few in number and are already widely predicted. The authors plan on using the model as private consultants, and the real growth market there is in predicting outcomes in district and appellate court cases. There isn’t as strong of a database in that area yet, but Blackman and Bommarito are optimistic. “When you look at the average law firm, they’re swimming in data that’s not very well collected and not very well structured,” Bommarito says. Collating that data into practical models could make a real difference for lawyers plotting their court and negotiation strategies. It could also potentially help legislators get a sense of how vulnerable laws they pass could be to a legal challenge. And of course, academics studying lower courts could find an effective model valuable too.

Want to learn more about the model? Check out David Kravets’ post at Ars Technica on it, Blackman’s blog post, the article the authors wrote describing it, or the model’s Github page. And don’t forget to click the toggle above to read my full interview with Blackman and Bommarito.

And in case you were wondering (I was), the reporters at Vox type their own transcripts. No court reporters involved. You can read the entire interview here.

While I am a fan of Justice Ginsburg (in particular her neck doilies), I am getting somewhat tired of the unflagging adulation of her. Her interview with Katie Couric had enough softballs to field an entire little league team. For example, RBG said that Hobby Lobby “have no constitutional right to foist that belief on the hundreds and hundreds of women.” She later discussed the Free Exercise Clause. She knows that Hobby Lobby was about RFRA, and not the First Amendment. Any competent interviewer would have pushed back. But Katie Couric was too busy gazing into RBG’s closet. I can’t imagine a similar interview with Justice Scalia going the same way–think of her grilling of Sarah Palin back in 2008.

But all of this hero worship may be having a deleterious impact on Notorious RBG herself. This stuff goes to your head, or jabot. I was stunned that she  took Couric’s bait, and said that her five male colleagues have a “blind spot” when it comes to woman.

Couric: “All three women Justices were in the minority in the Hobby Lobby decision. Do you believe that the five male Justices truly understood the ramifications of their decision?”

Ginsburg: “I would have to say no, but I am ever hopeful that if the Court has a blind spot today, its eyes will be open tomorrow.”

Couric: “But you do in fact feel these five Justices had a bit of a blind spot?”

Ginsburg: “In Hobby Lobby? Yes. Yes, I did.”

Couric: “And why was that?”

Ginsburg: “The same kind of blind spot the majority had in the Ledbetter case”

That is a stunning rebuke to her colleagues. Not only does she refuse agree to disagree about the interpretation of RFRA, but she said that they are *blind* to the plight of the woman–putting aside the law, because whatever. This is akin to Justice Sotomayor’s dissent in Schuette, who explained that Chief Justice Roberts can’t understand how racial minorities feel, and that he is “out of touch.” That is a blind spot. Such rhetoric is par for the course for the chattering class, but it is unseemly from the Justices themselves. RBG joined Sotomayor’s opinion, but I thought she was better than that. I guess not.

For further evidence of her own visions of grandeur, Consider Justice Ginsburg’s interview with Joan Biskupic on Thursday. She literally thinks she is the best, and no one can replace her:

Referring to the political polarization in Washington and the unlikelihood that another liberal in her mold could be confirmed by the Senate, Ginsburg, the senior liberal on the nine-member bench, asked rhetorically, “So tell me who the president could have nominated this spring that you would rather see on the court than me?”

That is some hubris. Oh I’m sure I could find hundreds of law professors who would rather see someone half her age on the Court, even someone more moderate. What RBG maybe doesn’t realize is the non-starstruck lawyers care less about who sits on the Court than who is casting votes for years to come. I wonder if she would have deigned to say that in 2009 when Judge Sotomayor and Solicitor General Elena Kagan were cozying up the short list.

In the past she explained that she wants to stick around until she can no longer do the job. But now, we see the ulterior motive–she doesn’t think anyone else can do the job better than her. And all of the praise of her no doubt heightens this. I still think she should decide when she retires, but now we know why she’s sticking around.

After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court. Criticizing her opinions amounts to criticizing women’s rights more broadly. For example, when Justice Alito responded to charges (many extremely exaggerated) in RBG’s Hobby Lobby dissent, the sense on the left was that he was attacking women, and RBG in particular. When I write a post about her decisions, I find myself double-checking adjectives for sensitivity, which is something I would not think twice about if I was writing about a Breyer or Stevens opinion. It becomes very dangerous when the law transcends the judicial opinions, and the Justices themselves become the locus of the constitutional discourse. For all the talk about polarization on the Court by the conservatives, it is the Court’s liberal wing–RBG and Sotomayor in particular–who are fragmenting the unity, both in their opinions and in public.