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 our first installment, 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 our second installment 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.

In this post, we offer predictions for the cases argued during the December sitting: Nickols v. Mortgage Bankers Association, Elonis v. U.S., Perez v. Mortgage Bankers Association, Whitfield v. U.S., B&B Hardware v. Hargis Industries, Young v. United Parcel Service, Hana Financial v. Hana Bank, Department of Transportation v. Association of American Railroads, Direct Marketing Association v. Brohl, Gelboim v. Bank of America Corporation, Alabama Department of Revenue v. CSX Transportation, U.S. v. June, U.S. v. Wong.

For these thirteen cases, FantasySCOTUS and {Marshall}+ agree with the outcome in five cases of the thirteen. 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
Nickols v. Mortgage Bankers Association	8-1 Affirm	9-0 Reverse
Elonis v. U.S.	8-1 Affirm	9-0 Reverse
Perez v. Mortgage Bankers Association	6-3 Affirm	9-0 Reverse
Whitfield v. U.S.	8-1 Reverse	9-0 Reverse
B&B Hardware v. Hargis Industries	6-3 Affirm	9-0 Reverse
Young v. United Parcel Service	5-4 Reverse	9-0 Reverse
Hana Financial v. Hana Bank	9-0 Affirm	9-0 Reverse
Department of Transportation v. Association of American Railroads	9-0 Reverse	9-0 Reverse
Direct Marketing Association v. Brohl	9-0 Reverse	9-0 Reverse
Gelboim v. Bank of America Corporation	9-0 Affirm	9-0 Reverse
Alabama Department of Revenue v. CSX Transportation	5-4 Reverse	9-0 Reverse
U.S. v. June	9-0 Affirm	9-0 Reverse
U.S. v. Wong	6-3 Affirm	9-0 Reverse

Nickols v. Mortgage Bankers Association

Nickols v. Mortgage Bankers Association is an administrative law case. It considers whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.

The crowd expects the Court to affirm, near unanimously. Only Justice Sotomayor is forecasted to reverse, and her vote at 51% is effectively a wash. {Marshall}+ predicts a strong unanimous reversal.

 

Perez v. Mortgage Bankers Association

Perez v. Mortgage Bankers Association is the companion case to Nickols, posing the related question of whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

While this crowd forecasts a vote of 6-3 to affirm, with Justices Scalia, Thomas, and Alito joining in dissent to reverse, {Marshall}+ also predicts a 9-0 reversal. Of note, the votes of Justice Scalia, Thomas, and Alito are slightly lower than those of the Justices the majority expects to affirm–but not by much.

 

Elonis v. U.S.

Elonis v. U.S. is a trendy case involving threats over social media. Specifically, it considers whether the First Amendment requires for a conviction of threatening another person the proof of the defendant’s subjective intent to threaten.

With respect to the relationship between the {Marshall}+ and the crowd, well, it’s complicated. The crowd expects almost all of the Justices to rule in favor of the government, and against the defendant Elonis. Justice Kagan, who sits at 51% to reverse, is effectively a wash. Meanwhile, the crowd expects all of the Justices to rule in favor of the defendant, and against the government.

 

Whitfield v. U.S.

Whitfield v. U.S. is a sentencing case. It considers whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

Here, the crowd and {Marshall}+ are in almost total agreement–the former predicting an 8-1 reverse, and the latter predicting a 9-0 reverse. Though, the vote of Justice Thomas to affirm is at exactly 50, so it is close enough to a unanimous reversal. Here, the government will almost certainly lose.

 

B&B Hardware v. Hargis Industries

B&B Hardware v. Hargis Industries is an intellectual property case. It considers whether a finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element.

The Crowd expects the Court to affirm, 6-3. The crowd, again, forecasts a unanimous reversal.

 

Young v. United Parcel Service

Young v. United Parcel Service is an employment discrimination case, that asks whether the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

The crowd predicts a 5-4 reversal, though it is tight with Justice Kennedy’s swing score only at 55%. The other conservative Justices are solid votes against Ms. Young. {Marshall}+, however forecasts a straight 9-0 reversal, with all of the Justices solidly behind the petitioner.

 

Hana Financial v. Hana Bank

Hana Financial v. Hana Bank, also an intellectual property case, asks whether the jury or the court determines whether use of an older trademark may be tacked to a newer one.

The crowd and {Marshall}+ are like two ships passing the night. The crowd predicts a solid 9-0 affirmance–the rarest of all splits. The algorithm predicts a solid 9-o reversal.

 

Department of Transportation v. Association of American Railroads

Department of Transportation v. Association of American Railroads is an constitutional and administrative law issue that considers whether the Passenger Rail Investment and Improvement Act of 2008 effects an unconstitutional delegation of legislative power to a private entity, Amtrak.

For this case, the crowd and {Marshall}+ are in complete agreement–both forecast a 9-0 reversal.

 

Direct Marketing Association v. Brohl

Direct Marketing Association v. Brohl, is a tax case that considers whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.

Here too, the crowd and algorithm are in perfect agreement–both forecasting a 9-0 reversal.

 

Gelboim v. Bank of America Corporation

Gelboim v. Bank of America Corporation is a procedural matter that asks whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.

The FantasySCOTUS crowd and the {Marshall}+ algorithm are diametrically opposite–the former predicts a 9-0 affirm, and the latter predicts a 9-0 reversal.

 

Alabama Department of Revenue v. CSX Transportation

Alabama Department of Revenue v. CSX Transportation is a tax case. It asks whether a state “discriminates against a rail carrier” when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors.

Here, the crowd and algorithm agree that the Court will reverse, but disagree on the split. FantasySCOTUS forecasts a 5-4 reversal with a liberal majority. The crowd predicts a fairly solid 9-0 reversal.

 

U.S. v. June

U.S. v. June is a Federal Torts Claim Act case, that asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the FTCA is subject to equitable tolling.

The crowd expects a unanimous affirmance, and the algorithm experts a unanimous reversal.

 

U.S. v. Wong

U.S. v. Wong, a companion case to June, asks whether the six-month time bar for filing suit in federal court under the FTCA is subject to equitable tolling.

The crowd expects three Justices to dissent in Wong, as compared to June–Justices Scalia, Thomas and Alito. The algorithm holds fast to a unanimous reversal.