Thursday, March 29, 2012

How to predict Supreme Court decisions

[In] 2004, future Chief Justice John Roberts, then a Supreme Court attorney, noticed that justices ask more questions of the side that ultimately loses in 86 percent of cases. Though he’d tested his theory on only 28 cases—and no one knew whether its sensational success rate would hold up—there was now ample evidence that oral arguments do, in fact, offer very useful data for predicting the outcome of a Supreme Court case. Drawing on this insight, many political scientists now incorporate language analysis of the arguments into their models. One method is to simply tally up the words spoken to each attorney, consistent with the approach Chief Justice Roberts pioneered. The other method goes slightly deeper, analyzing the emotional quality of the language that the justices use: The more “unpleasant” words a lawyer hears compared with his opponent, the less likely he is to win. (Justice Scalia has a habit of telegraphing his vote by using words like “idiotic” during oral argument.) ...

[A] state-of-the-art model created by professors Ryan Black of Michigan State, Sarah Treul of the University of North Carolina, Timothy Johnson of the University of Minnesota, and Jerry Goldman of Chicago-Kent College of Law suggests that the court will declare the individual mandate unconstitutional by a 5-4 vote. The big question mark, of course, is swing voter Justice Kennedy. He asked Solicitor General Donald Verrilli Jr. two more questions than he asked the challenger’s attorney, Paul Clement, with 14 percent more negative language, suggesting a slight preference for overturning the law.
--Brian Palmer, Slate, on the Supreme Court's tell