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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.

 

 

In today’s orders, Justice Alito dissents from the denial of certiorari from a 6th Circuit 1983 decision by Judge Keith, over a dissent from Judge Sutton. Judge Sutton’s dissent aptly summarizes the issue:

Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.
The majority seeing it differently, I must respectfully dissent.

Justice Alito put agreed the issue was terribly wrongly decided.

Certiorari is appropriate when “a United States court of appeals . . . has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power.” Supreme Court Rule 10(a). The decision of the Sixth Circuit in this case—holding that respondent suffered an adverse em- ployment action when his employer transferred him to a position for which he had applied—qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is war- ranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undis- turbed, will stand as a binding precedent within the Sixth Circuit. I would grant review and correct the Sixth Cir- cuit’s obvious error.

An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.

Alito also praised Judge Sutton’s opinion:

Judge Sutton dissented. The dissent noted that re- spondent applied for the transfer with full knowledge of what it involved, including the presence of diesel fumes in the workplace, ibid., and that respondent persisted in seeking the job after he initially did not receive it, id., at 922. The dissent rejected the majority’s suggestion that the transfer was “‘involuntary’” because respondent ad- mitted that no one told him that he had to take the trans- fer and neither did he tell anyone that he did not want it. Ibid. Because respondent gave the Commission “no rea- son to believe that he did not want the transfer and every reason to believe that he did,” the dissent concluded that the Commission did not subject respondent to an adverse employment action. Ibid. The dissent’s commonsense conclusion was correct.

He even calls the decision “unprecedented”:

The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based. I would grant the petition for certiorari and summarily reverse

As an aside, I think the Alito clerks added this unnecessary footnote to get the phrase “lack of consortium” into the U.S. Reports.

His wife, Mae Deleon, sued for lack of consortium and is also a re- spondent here.

 

Texas imposes many cost-prohibitive and onerous restrictions on African Hair Braiding schools that seek licensure.

Those facility and equipment requirements include the three Plaintiffs have placed in issue: (1) a requirement the school have “at least 10 student workstations that include a chair that reclines, a back bar, and a wall mirror” (the 10-ChairMinimum (2) a requirement the school install” a sink behind every two workstations” (the 5-Sink Minimum); and (3) a requirement the school have at least 2,000 square feet of floor space.

The Institute for Justice challenged each of these three requirements, which justify the regulations, as violations of the 14th Amendment.

In a thoughtful opinion, Judge Sparks (WDTX) invalidated the rule. In doing so, he applied the type of methodological application of the rational basis test that I champion in my article, The Burden of Judging. In short, he required the government to supply actual evidence that its motivations are reasonable, rather than accepting fabricated rationales. This small burden ensures that all but the most absurd regulations–such as the regulation at issue here–remain on the books. But the most sense violations of the right to pursue an honest living are excised from the statute books.

The District Court’s opinion grounds its rational-basis test analysis in the Fifth Circuit’s recent decision, St. Joseph Abbey v. Castille–another rational basis test victory by IJ invalidating a regulation on selling caskets. Most significant is St. Joseph Abbey’s characterization of Lee Optical.

In considering the agency’s argument, the Fifth Circuit discussed Lee Optical at length, noting Lee Optical” is generally seen as a zenith of [] judicial deference to state economic regulation” and embodied a “willingness to accept post hoc hypotheses” to shield such regulation against constitutional challenge. But, the Fifth Circuit explained, despite its healthy measure of deference to the legislature, Lee Optical “placed emphasis on the ‘evil at hand for correction’ to which the law was aimed” and “insist[ed] upon a rational basis, which it found.”

The District Court here accepted that articulation of the rational basis test. The Court walked through each rationale, one at a time, and concluded that Plaintiffs “have successfully refuted every purported rational basis” for the regulations, and the “Court can discern no other rational bases for the” regulations “in light of the facts at hand.” Rather than conceiving of the most outlandish justifications under the rational basis test, the court remained grounded in reality, and only thought of other possible bases in light of the “facts at hand.”

First, with respect to the 10-Chair minimum, the Court acknowledged it “at first blush . . . seems reasonable,” however the law also states that schools that only offer hair braiding curriculum need an “adequate number” of chairs. The court founds this regulation is not “rationally related to any legislative purpose.”

Second, with respect to the 5-sink minimum, the court found the state’s “disinfecting protocols” unpersuasive because students were allowed to use liquid hand sanitizer, rather than water and soap, prior to braiding hair. Further, hair braiders are not required under state law to have sinks–so why should schools. This rational too was not “rationally related to any legislative purpose.”

Third, with respect to the 2,000 square foot minimum, the Court did not accept the government’s rationale that it promotes “effective and efficient inspection of facilities” by “ensuring the state will not be required to inspect many small barber schools for compliance with state law.” The Court’s analysis on this point was very important–there was nothing in the record suggesting that this rationale, in the least, motivated the law. Citing St. Joseph Abbey, the Court found that this concern was not “an evil at hand for correction’ to which the” square-footage requirement was aimed. The Court rejected an approach that “proceeds with abstraction for hypothesized ends” or one premised on “post hoc hypothesized facts.” The linking of the rationale to the “evil at hands” is an important nexus that gives the rational basis test some meaningful teeth.

Finally, the court asked Defendant whether there was a single school that teaches solely African Hair Braiding that complies with the regulations. The government could not identify one, even after being afforded an additional ten days for doing so. The Court explained that the “absence of any such schools is troubling, as the Texas regulatory scheme explicitly contemplates the existence of barber schools which teach solely the thirty-five hour hair braiding curriculum.” In other words, the regulations render impossible the very vocation that the Texas law envisions being able to exist. The Court viewed this fact as a “logical disconnect.” To make this point more clear, the Court notes that “Texas has issued zero individual hair braiding instructors’ licenses. The bureaucracy nullified this vocation. Only through a federal law suit could the hair braiders pursue their right to earn an honest living.

This is another important application of meaningful rational basis review. I hope it spreads.

In Steven Brill’s new book, America’s Bitter Pill, about Obamacare, we get this bizarre and unsourced anecdote that is almost too good to be true.

But by January 22 [2010] , there was hope in the air in some quarters. That night Zeke Emanuel was seated at a dinner next to Supreme Court justice Antonin Scalia. The conservative Scalia kidded Emanuel about the apparent collapse of Obamacare. Zeke offered to bet him that they would get Obama’s reform package through, somehow.

Can this possibly be true? By what of background, on January 19, 2010, Scott Brown beat Martha Coakley in the Massachusetts Special Election, giving the Republicans 41 votes, and enough to break a filibuster. It was at this time the Democrats were weighing whether or not to go ahead allowing the House to vote on the Senate Bill, or using “Deem and Pass,” or the budget reconciliation process, or even abandoning the whole endeavor.

Scalia, if this story is to be believed, was tweaking Zeke Emanuel, along with Gruber an architect of Obamacare, about the law’s “apparent collapse.”

Beyond this anecdote, the book doesn’t offer many insights about the Supreme Court litigation (what interests me most).

One quasi-litigation related issue is this discussion about how no one wanted to frame the mandate as a tax:

Yet Bauer, taking the view that most legal academics had already espoused, said he was confident the courts would not interfere with Congress’s judgment that this was a penalty necessary to regulate and improve the health insurance market, which, of course, was commerce. “We think we’re in a strong position,” Bauer reported, according to notes of the meeting taken by one of the participants. Unmentioned in the discussion (although it was always mentioned in the government’s briefs) was that had Congress called the penalty a tax, there would have been no case at all. The Constitution gave broad taxing power to Congress. And the nation’s tax collector, the IRS, had been charged under Obamacare with collecting what anyone who ignored the mandate owed. Yet no politician on Capitol Hill or in the White House wanted to be associated with raising taxes if he or she could avoid it. Many, like David Axelrod and Charles Schumer, were wary of the penalty as it was.

Months before, in the early stages of drafting the bill, someone on the Finance Committee staff had mentioned the possibility of calling it a tax because he had heard a Republican staffer say something about the Commerce Clause. However, he was quickly shot down. The issue hadn’t come up since— until the lawsuits started flying. Still, Bauer did not mention the possibility of calling the penalty a tax as a defense. He was confident about the Commerce Clause. Insurance was commerce , and the mandate was simply a necessary way to regulate that commerce by strengthening the insurance market.

And apparently one member of “Obama’s political team” told a staffer that “the person in charge of Obamacare is John Roberts.”

In a third case, a White House staffer told me that a member of Obama’s political team had said that there was no need to rush anything out the door, though he rationalized it by explaining that for now “the person in charge of Obamacare is John Roberts.” He was referring to the chief justice of the United States and the fact that the constitutionality of Obamacare was on its way to being argued before the Supreme Court in late March 2012.

Brill, Steven (2015-01-05). America’s Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System (Kindle Locations 3868-3871). Random House Publishing Group. Kindle Edition.

Double hearsay!

I also found interesting this quotation from the President, which Brill secured in a Q&A is very revealing:

Keep in mind, not only did the ACA become law, it was upheld by the Supreme Court in 2012, and, in the same year, voters rejected the candidate who promised to repeal it. Despite all that, you’ve seen a sustained effort to sabotage the law at every turn— from fifty-something repeal votes to efforts aimed at defunding its implementation, to lawsuits. This from a party that’s typically opposed to frivolous lawsuits.

To be exact, Romney did not say he would repeal the ACA, and got mad at Paul Ryan when he suggested that. Romney also invented Romneycare, the godfather of Obamcare, designed by Jonathan Gruber. As I explain in my book, the GOP ran perhaps the worst conceivable candidate on the issue of Obamacare in 2012. And he lost.

He added:

But it should be pretty clear by now that I didn’t do this because it was good politics. I did it because I believed it was good for the country. I did it because I believed it was good for the American people.

This was almost verbatim the message he gave at the Capitol Visitor Center to House Democrats the day before the House voted on the ACA.

The best question was the one not answered:

QUESTION 11 How would you explain to a sixth or seventh grade class the process that led to the passage of Obamacare— the negotiations with the various industry sectors, the lack of bipartisanship, the sheer complexity and length of the statute?

THE PRESIDENT’S ANSWER:

Declined to answer.

 

Retired Supreme Court Justices are allowed to hire one law clerk. Usually, that clerk is assigned to work part-time for another Justice.

In the Atlantic, Ryan Park writes a fascinating article about his clerkship with Justice Ginsburg. The article begins:

This past summer, on the last day of my clerkship with Justice Ruth Bader Ginsburg, she rose from her cavernous desk and, following a hearty goodbye hug, asked me what was next. I told her that the next morning marked the start of my new job as a stay-at-home dad. She smiled warmly and wished me luck.

Nowhere in the actual article is there ANY mention of the fact that Park was actually a Souter clerk, who was assigned to Ginsburg. Only in the footer of the article, do you see this credit, which lists RBG first:

Ryan Park is an associate at the law firm Boies, Schiller & Flexner LLP and a former law clerk to U.S. Supreme Court Justices Ruth Bader Ginsburg and David H. Souter.

Is this bad etiquette to slight the Justice you work for, and only mention him in passing in the author bio? I have no doubt Park did extensive work for RBG, and worked closely with her, but the standard practice is to focus on the judge who hired you. This is almost as bad as some people who say they clerked for Justices Breyer or Alito, when they actually clerked for Judges Breyer or Alito (you know who you are!).

Also, the timing of his gap between clerking and working seems within the realm of normalcy. He finished working at the Court in July of 2014.  He started working at Boies, Schiller & Flexner a “few weeks ago.” He took off roughly five months between the conclusion of his clerkship, and the start of his law firm gig. That doesn’t seem too unreasonable. Several clerks I know have taken off a few months to travel and do other fun stuff. Also, I am pretty sure he still collected the $250,000+ signing bonus.

Update: David Lat notes that Aaron Zelinsky, who clerked fro Justice Stevens, and was assigned to Justice Kennedy, writes this for his bio:

Aaron Zelinsky served as a law clerk for Justices John Paul Stevens (Ret.) and Anthony Kennedy of the United States Supreme Court, as well as Chief Justice Dorit Beinisch of the Israeli Supreme Court and Judge Thomas B. Griffith of the Court of Appeals for the District of Columbia Circuit.

I think this strikes the right balance. It is accurate, and respectful to both judges.

Update: The article is now updated, with Justice Souter’s name listed first.

Ryan Park is an associate at the law firm Boies, Schiller & Flexner LLP and a former law clerk to U.S. Supreme Court Justices David H. Souter and Ruth Bader Ginsburg.

Update: Ryan provided an update to ATL:

I just wanted to write and address one thing that is mentioned in the post, which is my dual citizenship in both Justice Souter’s and Justice Ginsburg’s chambers. I completely agree that I owe the privilege of clerking at the Court to Justice Souter, who is the person who actually hired me. But I couldn’t really think of a good place to mention my relationship with him in the main body of the article in light of the article’s context. (I mean, much of it is a tribute to Justice Ginsburg’s life and career.) I’m grateful to Justice Ginsburg for taking me on as one of her own. I didn’t mean to slight (or think I was slighting) Justice Souter by writing an article highlighting my relationship with her. It also would have been nice to mention the other judges I clerked for, Chief Judge Robert Katzmann and Judge Jed Rakoff, but it wasn’t really relevant to the piece. I didn’t write the byline (or the headline) for the article, but I asked that the order of the Justices be flipped, just to put the issue to bed. The Atlantic agreed to do so.