This term, the LexPredict team will be generating predictions for all cases argued before the Supreme Court. First, we are aggregating the crowd-sourced predictions of the players on FantasySCOTUS. Second, we are generating predictions from {Marshall}+, our SCOTUS-prediction algorithm. You can view all of the predictions for Supreme Court cases at our Prediction Tracker and you can read more about the {Marshall}+ methodology via our paper on SSRN / arXiv and these presentation slides.

For each sitting, we will compare the FantasySCOTUS predictions with the {Marshall}+ predictions. In a previous post, we offered predictions for cases argued during the October sitting: Heien v. NC, Dart Cherokee Basin Operating Co., v. Owens, Holt v. Hobbs, Warger v. Shauers, Integ. Staff. Solns. v. Busk, and N.C. Board of Dental Examiners v. FTC.

In this post we offer predictions for the remainder of the cases argued during the October sitting, and all cases argued during the November sitting: Jennings v. Stephens, Teva Pharmaceuticals USA v. Sandoz, Omnicare v. Laborers District Council Construction Industry Pension Fund, Zivotofsky v. Kerry, Department of Homeland Security v. MacLean, Jesinoski v. Countrywide Home Loans, Johnson v. U.S., Yates v. U.S., M&G Polymers USA, LLC v. Tackett, T-Mobile South, LLC v. City of Roswell, Alabama Democratic Conference v. Alabama, Alabama Legislative Black Caucus v. Alabama, and Comptroller v. Wynne.

For these thirteen cases, FantasySCOTUS and {Marshall}+ agree with the outcome of four out of the thirteen. Of 117 possible Justice votes, FantasySCOTUS and {Marshall}+ agree on 64 (55%). For the year as a whole, out of 170 total predictions, FantasySCOTUS and {Marshall}+ agree on 93 out of 171 (54%). Our level or agreement remains roughly the same. FantasySCOTUS is predicting a significant number of affirms–much higher than the historical average. {Marshall}+ is predicting a majority of reverses, which is more in keeping with the Court’s practices. Because one of the variables in our algorithm considers the duration of time between when the case is argued, and decided, the predictions offered today may differ as the term progresses.

	FantasySCOTUS Crowds	{Marshall}+ Algorithm
Jennings v. Stephens	6-3 Reverse	5-4 Affirm
Teva Pharmaceuticals USA v. Sandoz	9-0 Affirm	9-0 Reverse
Omnicare v. Laborers District Council Construction Industry Pension Fund	9-0 Reverse	5-4 Reverse
Department of Homeland Security v. MacLean	5-4 Affirm	9-0 Reverse
Zivotofsky v. Kerry	6-3 Affirm	9-0 Reverse
Jesinoski v. Countrywide Home Loans	5-4 Affirm	5-4 Affirm
Johnson v. U.S.	9-0 Reverse	9-0 Reverse
Yates v. U.S.	8-1 Affirm	8-1 Reverse
T-Mobile South, LLC v. City of Roswell	7-2 Reverse	9-0 Reverse
M&G Polymers USA, LLC v. Tackett	5-4 Affirm	9-0 Reverse
Alabama Democratic Conference v. Alabama	5-4 Affirm	9-0 Reverse
Alabama Legislative Black Caucus v. Alabama	5-4 Affirm	9-0 Reverse
Comptroller v. Wynne	6-3 Affirm	9-0 Reverse

Jennings v. Stephens

Jennings v. Stephens is a habeas corpus case where a prisoner prevailed on an ineffective assistance of counsel claim. This case presents the question of whether the petitioner must “file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal?” The Fifth Circuit  held that such a separate notice was required, and dismissed the appeal.

While FantasySCOTUS predicts a judgment of 6-3 reversal in favor of the prisoner, {Marshall}+ forecasts a 5-4 affirmance in favor of the government. At 52%, the Crowd is largely uncertain about the vote of Chief Justice Roberts.

 

 

 

Teva Pharmaceuticals USA v. Sandoz

Teva Pharmaceuticals USA v. Sandoz, an IP case, poses the question of whether. “Whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.”

For this case, FantasySCOTUS and {Marshall}+ could not disagree more. The former predicts a 9-0 affirmance of the Federal Circuit’s decision to use de novo review, while the latter forecasts a 9-0 reversal of the Federal Circuit, and a ruling requiring the application of clear error review. In recent years, the Court has consistently reversed the Federal Circuit. This case may be one of the outliers where the Court rules in a manner inconsistently with many previous Federal Circuit cases.

 

Omnicare v. Laborers District Council Construction Industry Pension Fund

Omnicare v. Laborers District Council Construction Industry Pension Fund is a case involving Section 11 of the Securities Act of 1933. It considers whether a plaintiff may “plaintiff may plead that a statement of opinion was ‘untrue’ merely by alleging that the opinion itself was objectively wrong . . . or must the plaintiff also allege that the statement was subjectively false.” The 6th Circuit held that the plaintiff must only show it was “objectively wrong,” and Omnicare appeals.

In this case, FantasySCOTUS and {Marshall}+ largely agree that the Court will reverse. The crowd thinks it will be unanimous, the algorithm along 5-4 line.

 

 

Zivotofsky v. Kerry

Zivotofsky v. Kerry is an important separation of powers case. It considers the constitutionality “a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in ‘Israel'” on a passport. The D.C. Circuit ruled in favor of Secretary of State John Kerry, finding the statute was unconstitutional.

The results here are very strange. {Marshall}+ is extremely certain that all 9 Justices will vote to reverse, and rule against the Government. Each Justice is around 90%, which is very, very rare. FantasySCOUTS predicts a modest 6-3 victory for the government, with only Justice Scalia, Thomas, and Alito ruling against Secretary Kerry.

 

Department of Homeland Security v. MacLean

Department of Homeland Security v. MacLean is a whistlebolower case. It considers whether certain statutory protections which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information. The lower court ruled in favor of MacLean, the whistleblower, and the Department of Homeland Security Appeals. (As a funny aside, the respondent in MacLean checks FantasySCOTUS for updates on his case).

FantasySCOTUS and {Marshall}+ only agree on the votes of 4 Justices: Roberts, Scalia, Thomas, and Alito. Overall, the crowd expects a 5-4 Affirm in favor of the Whistleblower, while the algorithm expects a unanimous 9-0 reversal in favor of the government.

 

Jesinoski v. Countrywide Home Loans

Jesinoski v. Countrywide Home Loans is a case involving the Truth in Lending Act. It considers whether a “borrower exercise his right to rescind a transaction in satisfaction of the requirements . . . by ‘notifying the creditor’ in writing within three years of the consummation of the transaction . . . or must a borrower file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held?

The crowd and algorithm agree that this case will be a 5-4 affirm.

 

Johnson v. United States

Johnson v. United States marks another return to the Court over the application of the Armed Career Criminal Act. This case considers whether the “mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.” The lower court ruled against Johnson, finding that it did qualify.

On appeal, both the FantasySCOTUS crowd, and {Marshall}+ forecast a unanimous reversal, and overall victory for the government.

 

Yates v. United States

Yates, who threw away small fish he was not allowed to capture, was prosecuted for a violation of the Sarbanes-Oxley Act. This case asks whether he “was deprived of fair notice that destruction of fish” would be a “tangible objection.”

The predictions for Yates are almost entirely out of phase. The crowd expects an 8-1 Affirm, in other words, an overwhelming victory for the government. The algorithm expects a 9-0 reversal, giving Yates a complete victory.

 

T-Mobile South, LLC v. City of Roswell

This case concerns whether the City of Roswell’s document, denying T-Mobile the ability to build a cellular tower, “but provid[ed] no reasons whatsoever for the denial, can satisfy this statutory ‘in writing’ requirement.”

The crowd and algorithm are in total agreement that the Court will reverse. The only votes out of sync are those of Justices Thomas and Alito. FantasySCOTUS expects both to affirm. T-Mobile is likely going to win.

 

 

M&G Polymers USA, LLC v. Tackett

This Labor Management Relations Act case aims to resolve a three-way circuit split over the “duration of retiree health-care benefits.” The 6th Circuit ruled against M&G Polymers, holding that “silence” should be presumed to “means the parties intended those benefits to vest (and therefore continue indefinitely).”

For this case, the crowds and algorithm agree on the votes of the liberal Justices, but none of the conservatives. The former forecasts a 5-4 victory for Tacket, while the later predicts a complete victory for M&G Polymers.

 

Alabama Democratic Conference v. Alabama

This case poses a complicated Voting Rights Act issue concerning whether a redistricting “amounted to an unconstitutional racial quota and racial gerrymandering.” The crowd predicts a victory for the state along conventional 5-4 lines. The algorithm forecasts a unanimous reversal in favor of the challengers.

 

Alabama Legislative Black Caucus v. Alabama

The results for the crowd and algorithm are the same for the companion case.

 

Comptroller v. Wynne

In this case, the Court will decide if the Constitution “prohibit[s] a state from taxing all the income of its residents-wherever earned-by mandating a credit for taxes paid on income earned in other states.” The crowd expects a 5-4 victory for Wynne, the taxpayer. The algorithm expects a unanimous reversal in favor of the government, finding the taxation was permissible.