Blog

Senator Cruz, who may be vying for the Senate Majority leader position, offered these comments to CNN about how Obamacare can be repealed.

BLITZER: You might be able to pass the legislation in the House and the Senate. You will be in the majority. But he has got that veto. As you well know, he is going to be able to veto that kind of legislation. And you don’t necessarily have a two-thirds override.

CRUZ: No doubt. I think we should stand together. We should use reconciliation, we should pass full repeal. You’re right, the president will almost surely veto it. But then we should start systematically repealing some of the most burdensome aspects of Obamacare. We should systematically pass legislation that provides that you can’t have your health insurance canceled, you can’t lose your doctor because of Obamacare. Honor the president’s promise there. We should change the law so that people aren’t forced into part-time work. Millions of people, especially single moms, have been forced into part-time work. We need to change the law to do that. We need to prohibit insurance company bailouts. We need to pass law after law after law, responding to the American people, and put them up to the president and see if he is welling to veto every aspect of legislation that would protect the American people and provide relief to the people who are suffering.

Assuming Ted Cruz is still a Senator in 2017, and a GOP wins the White house, I wonder whether he could be e a Hugo-Black style appointment. Hugo Black was a thorn in FDR’s side, so the President put him on the Court. He stayed there for three decades and had a remarkable career, but it seemed like a good idea at the time. I wonder if the Senate would be all to willing to see Cruz leave–even confirming him to get him out of the Senate! Food for thought. Though, could you imagine Justice Cruz replacing Justice Scalia?

This term, LexPredict is generating predictions for all cases argued before the Supreme Court. First, we are aggregating the crowd-sourced predictions of the players on FantasySCOTUS, based on the wisdom of the crowds. Second, we are generating predictions from {Marshall}+, our SCOTUS-predicting algorithm. You can view all of the prediction data at our Prediction Tracker.

  For each sitting, we will compare the FantasySCOTUS predictions with the {Marshall}+ predictions. In this post, we will offer 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.

  Here are the overall comparisons. FantasySCOTUS and {Marshall}+ agree with the outcome of two cases. Of 54 possible Justice votes, FantasySCOTUS and {Marshall}+ agree on 27 (50%). 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.

Heien v. North Carolina

  Heien v. North Carolina presents the question whether “a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.” The North Carolina Supreme Court held that the police officer’s mistake of law was objectively reasonable and that he had reasonable suspicion to stop the vehicle in which defendant was a passenger. The defendant appealed to the Supreme Court, seeking a reversal.

  For Heien, {Marshall}⁺ and the FantasySCOTUS crowd are in perfect agreement. Each predicts a 5-4 affirm, with Chief Justice Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito in the majority, and Justices Ginsburg, Breyer, Sotomayor, and Kagan in dissent. According to {Marshall}+ the Justices with the most uncertainty are Justices Kennedy and Breyer. Kennedy has a prediction score of 55% to reverse, with a confidence score of only 9%. This is very close to chance. Breyer has a prediction score of 59% to reverse, with a slightly more certain confidence score of 18%. These scores are very close to a coin toss, and could flip either way.

  The FantasySCOTUS crowd sees Breyer’s vote identically as {Marshall}+, with a 59% prediction score. But, the FantasySCOTUS crowd is much more certain about Justice Kennedy, providing a 74% prediction score. In the end, both systems predict a 5-4 Affirm.

Dart Cherokee Basin Operating Co., v. Owens

  Dart Cherokee Basin Operating Company, LLC v. Owens presents a somewhat complicated procedural question: “Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required ‘short and plain statement of the grounds for removal” enough?'” The lower court held that a “defendant seeking removal under CAFA need only allege the jurisdictional amount in its notice of removal and must prove that amount only if the plaintiff challenges the allegation.”

  The predictions of FantasySCOTUS and {Marshall}+ are entirely at odds. The crowds forecast a 9-0 affirm (one of the rarest outcomes of any Supreme Court decision), while {Marshall}+ predicts a 7-2 reverse. {Marshall}+ also sees Justices Sotomayor and Kagan as most likely to dissent from the majority, and vote to affirm the lower court. Justices Ginsburg and Breyer are also somewhat uncertain, but are more likely to join with the majority and reverse.

Holt v. Hobbs

  Holt v. Hobbs considers whether a ban on prisoners growing a “one-half-inch beard in accordance with his religious beliefs” violates the Religious Land Use and Institutionalized Persons Act. The 8th Circuit held that this policy was permissible. The prisoner, Holt, appealed to the Supreme Court, seeking a reversal of that judgment.

  For Holt v. Hobbs, FantasySCOTUS and {Marshall}+ agree on the outcome, but not on the vote breakdown. The crowd expects a 9-0 reverse, while {Marshall}+ sees a 7-2 reverse, with the most conservative Justices–Thomas and Scalia–voting to affirm the lower court. Although, Thomas and Scalia, as well as Alito, are somewhat on the fence, with prediction confidences of only 4%, 7%, and 4% respectively. That is not much better than chance. If Alito does flip the other way, it would be a 6-3 reverse. In any event, all three of these votes are very close.

  Despite the difference in the vote breakdown, all of the FantasySCOUTS votes are fairly close to the {Marshall}+ votes, with less than a 20% difference. On the whole, the crowd is more confident in all of the Justices reversing, with a spread between 63% and 83% for a unanimous reversal. This may be due to oral arguments, which went extremely poorly for the government. {Marshall}+ generates predictions prior to oral arguments.

Warger v. Shauers

  Warger v. Shauers poses an evidentiary issue: “Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.”  The 8th Circuit held that the evidence was inadmissible, because “Rule 606(b) precludes jurors from testifying in regards to jury deliberations for the purpose of challenging a verdict.”

  For Warger, FantasySCOTUS and {Marshall}+ are two ships passing in the night. They see the case as polar opposites. The crowd expects an solid 9-0 affirm (the rarest of Supreme Court outcomes). {Marshall}+ predicts a tentative 9-0 reverse (the most common Supreme Court outcome). We pause to note that {Marshall}+ performs very poorly at predicting 9-o affirms, with our accuracy hovering between 20% and 30%. For 9-0 reverses we are north of 75%.

  9-0 Affirms are the types of cases where human predictions are more likely to prevail. The only insights to glean here are that {Marshall}+ sees the conservative block of Scalia, Kennedy, Thomas, Roberts, and Alito as potential swing votes.

Integrity Staffing Solutions v. Busk

  Integrity Staffing Solutions v. Busk, a labor case, queries “Whether time spent in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act.” The 9th Circuit ruled in favor of the employee, and found the time was compensable. The employer, Integrity Staffing Solutions, has appealed to the Supreme Court seeking a reversal.

  While reversing the 9th Circuit has been a historical past time for the Court, the Crowd disagrees with {Marshall}+ over the votes of Justices Breyer and Kennedy. The crowd sees a 5-4 affirm, while {Marshall}+, trained by the oft-reversed 9th, forecasts a 6-3 Reverse. {Marshall}+ sees a strong likelihood of the conservative block, Scalia, Kennedy, Thomas, Roberts, and Alito, reversing. {Marshall}+ also sees Breyer, Ginsburg, Kagan, and Sotomayor as possible swings.  If Ginsburg, Kagan, and Sotomayor were to swing, the resulting decision would be a 9-0 reverse. In other words, this case is a close call between 6-3 reverse, and unanimous reversal. The crowd sees almost no chance of this happening.

North Carolina Board of Dental Examiners v. Federal Trade Commission

  North Carolina Board of Dental Examiners v. Federal Trade Commission, an antitrust case, asks whether an official state regulatory board is treated as “private” actors because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants. The Fourth Circuit ruled in favor of the FTC, and held that the regulatory board was a private actor. The Dentists did not take a shine to the lower court decision, and drilled their appeal to the Supreme Court.

  The FantasySCOTUS crowd predicts a 9-0 affirm (again, this is the rarest of SCOTUS outcomes), while {Marshall}+ forecasts a 5-4 reverse along conventional lines. {Marshall}+ sees Justices Breyer, Sotomayor, Ginsburg, and Kagan as possible swings–the last two especially-but that would result in a 9-0 reverse, the exact opposite of what the crowd has predicted.

Kansas v. Nebraska and Colorado

  We did not generate {Marshall}+ predictions for Kansas v. Nebraska and Colorado. The original jurisdiction cases are so rare, and have an odd disposition–there is no lower court to affirm or reverse–that they do not fit into our algorithm’s inputs. The FantasySCOTUS crowd predicts that all 9 Justices will accept the report of the special master (effectively a 9-0 affirm).

During her excellent interview of Justices Thomas, Alito, and Sotomayor, Professor Kate Stith inquired about what she called “the most academic court of all time.”

There are four former professors on the Court–Scalia, Ginsburg, Breyer, and Kagan. By that measure, this is the most academic court of all time. But none of the former professors are Yalies. Are there too many former professors? Are Too many former appeals court juges? Not enough of something else.

Justice Alito deftly dodged the question.

As far as academics go, we are at a dangerous tipping point. They are almost in the majority. Who knows what they will do to us when they are in control. Being a court of appeals judge is perfect preparation for being a Supreme Court Justice.

Justice Thomas payed homage to at least one of the SCOTUS academics:

As far as the makeup of the Court, I don’t feel I am in a better position to say who is qualified. Our colleagues who are academics, who would we replace? I like them all. You don’t have to agree with Justice Ginsburg to know she does fantastic work. When you disagree with her, you know she will force you do to better.

 

In Romer v. Evans, the Court invalidated a Colorado constitutional amendment that prevented localities from providing certain protections to gay people. Justice Kennedy found that this law singled out a class of people, and heaped a special disability onto them. This violated the Equal Protection clause.

In the wake of recent decisions invalidating bans on same-sex marriage, we may see Romer, in reverse. Utah is considering a state constitutional amendment that prevents churches from being forced to perform same-sex marriages. Sen. Jim Dabakis, a gay and married state senator from Salt Lake City (did anyone think that position could have existed only a few years ago?) supports that law, warned that he would oppose any laws that singled out LGBT people as a special class.

But Dabakis has warned that he and others would fight expansion of such legislation to include allowing wedding photographers, wedding cake bakers, reception centers or other businesses to choose not to serve same-sex couples.

“I would have a problem if they start saying LGBT people are in a special class, and they can be discriminated against,” Dabakis said earlier this month.

Is’t this Romer in reverse? In Romer, a state constitutional amendment was passed that singled out gays as a class of people who could not receive certain protections under the law. As Justice Scalia’s dissent characterized it, the law ensured that everyone was being treated equally, but the majority rejected that understanding of the law.

Here, the situation is exactly the opposite. People would now be allowed to discriminate against LGBT customers. Gays would be singled out as a single class, by statute, as a group that cannot bring any claims for discrimination from certain businesses. Depending how these laws are framed, and the background behind them, I can see a Romer challenge lurking.

There is some irony that we’ve gone from Romer, which prevented cities from providing special protections to gays, to these proposed laws, which would deny gays the protections achieved as a result of same-sex marriage bans falling. It’s been a busy two decades!

I’m putting aside for the moment whether these businesses can be required to provide certain services in violation of First Amendment right against compelled speech, or state religious freedom restoration acts. The compelled speech issue–forcing people to officiate at weddings, bake a wedding cake,  photograph a wedding, etc.–is quite serious, and would trump any state statute. But state RFRAs would still be subject to a Romer claim as violative of equal protection as applied.

In Buck v. Bell, the Supreme Court sanctioned the state performing tubal ligation surgeries on undesirable persons. Now, in Buck v. Cornell, the Ivy League college is performing tubal ligation on undesirable deer. Three generation of white tail deer is enough!

The Washington Post reports on Cornell’s ineffective methods of sterilizing deer in an effort to cull the surging deer population.

Typically, a deer boom is dealt with through hunting. Often, sharpshooting riflemen or archers are brought in to bait the animals into zones where shots can safely be taken. Cornell’s administrators took a different approach: They chose to experiment with sterilizing many of the wild deeron campus while allowing periodic hunting on nearby land — and the result was something that nobody anticipated.

Washington’s deer population has surged in recent years, particularly in Rock Creek Park, where last year an estimated 335 deer lived.

Much like Carrie Buck, the deer had their fallopian tubes cut:

The method of contraception chosen by Cornell was tubal ligation, in which a doe’s fallopian tubes are either blocked or severed. This prevents egg cells from reaching the uterus. Unlike chemical forms of birth control, tubal ligation is typically permanent and avoids the expense of capturing the same deer each year to maintain their infertility. At a cost of roughly $1,200 per deer, 77 does were captured and sterilized though tubal ligation. (Without the help of the Cornell University College of Veterinary Medicine, the costs would have been higher.)

But it didn’t work! How can it be that the population increased after performing tubal ligation on the deer?!

Bucks and does form temporary pairs for a few days in order to mate. Bucks can travel for miles to seek out does in heat, which means that a large number of females would need to be targeted for sterilization. …

Under normal conditions, all female whitetails go into heat within several weeks of each other and become pregnant at around the same time. This annual event is called the rut. However, if a doe is not impregnated during the rut, it will enter heat again the following month and again the month after that. Because the ligated does were unable to become pregnant, they continued to produce chemical signals of readiness to reproduce — signals that can attract bucks from miles away.

By preventing pregnancy in does, Cornell had accidentally invented a population of buck magnets that regularly drew in new deer from the surrounding area.

And, here’s the kicker–even deer that were sterilized still managed to give birth. So they gave them ovariectomies! And that still didn’t work! How is this even possible?

Cornell has begun experiments with ovary removal in deer, but Curtis’s team has already had a surprise.

“Three of the 77 tubal ligation deer gave birth to fawns,” Curtis said. “These three deer were recaptured and later were given ovariectomies. All three had ovarian anomalies, and at least one experienced tissue regrowth post-surgery.”

Even after the surgical removal of their ovaries, one of the three deer became pregnant again. It is not clear how this was possible. One supposition is that some ovarian tissue may have escaped the scalpel and regrown into a functioning ovary.

If we learned nothing from, Jurassic Park, we can’t dinosaurs, and deer, from reproducing. As Jeff Goldblum said, life finds a way.

I have an idea. Invite Justices Scalia and Kagan to Cornell Law School, and they’ll take care of the excess population, and entertain the students. Boom. (Pun intended).