Friday, May 13, 2005


Supreme Court prognostication (updated)

Knowing how the Supreme Court will rule before it rules could be very, very useful. Should you jump bond and head for the border? Should you sell that pharmaceutical stock before the company is notified of its billion-dollar-plus liability? Inquiring minds want to know. So a number of people have tried to find the key, with a modicum of success.

Now Sarah Shullman, a law student, has done a study that revealed a very successful prognosticator: the side receiving the greater number of hostile questions is the side that's very likely to lose.

In hindsight that seems obvious, but some tea-leaf readers have been predisposed to interpret the hostile questions as a form of "playing the Devil's advocate." Not so. The Justices mean it.

Shullman had only a limited sample size—10 cases—but she hit 100%. According to Tony Mauro writing for American Lawyer,

... the methodology has already been tested since she did her study. John Roberts Jr., one of the masters of the trade before taking the bench in 2003, used her theory for a talk he gave on oral advocacy before the Supreme Court Historical Society last year. Picking 14 oral arguments from the 1980 term and 14 from the 2003 term, Roberts found that in fact the most questions went to the losing party in 24 of the 28 cases — an 86 percent rate of accuracy.

Her study also revealed the Supremes' proclivities to question—

Shullman ... found that Justice Ruth Bader Ginsburg asked the most questions — and the least hostile ones — of all the justices, and that Justice Stephen Breyer asked the most hostile questions. But his was equal-opportunity hostility, handed out in equal measure to both sides. Justice Sandra Day O'Connor, often viewed as the mystery swing vote, turned out to be highly predictable using this method; she asked more than three times as many questions of the party she then voted against than the party she supported.

Chief Justice William Rehnquist was, oddly enough, one of the least predictable, according to his nearly equal questioning of both sides. What about Justice Clarence Thomas, who almost always remains silent on the bench? "Because Justice Thomas is rarely a swing vote, his silence should not pose an obstacle in most cases" to prediction, she writes.

If the Senate hearings on Justice Thomas' nomination are any indication, he's probably looking at girlie mags.

Mauro points out that—

The allure of the question-count method is not just that it is simple, but that it now will be incalculably easier to use. Since last October, transcripts of the Court's oral arguments have named the justices asking the questions. (Before, they were listed only as "question," with no identification of the justice asking it.) Now all you need do is to search the .pdf files of transcripts for the names of each justice, and you'll have the count.

Mike or Norm (I can't tell which), writing on a law blog, has predicted a ruling in favor of the government in Ashcroft v. Raich. If any of you would like to predict the outcome of this case using Sarah Shullman's method, I would be delighted to post your findings. Ashcroft v. Raich is not just about getting high in California, it's about state versus federal rights. Or how far the Court will extend the power of Congress under the Commerce Clause of the Constitution.

3:27 pm

Mike has kindly left a link in the comments to a post at The Volokh Conspiracy. It seems they've counted up the questions over there, and things look very bad for the home team. Oh, woe!

Related post
Marijuana: Better than faith-healing (1/3/05)

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