Posted by Jim Lindgren:
Does Asking More Questions Tip the Outcome of Supreme Court Cases?--
http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115878999
Tony Mauro has an [1]interesting article on whether the number and
tone of Supreme Court questions can tip off the final result in the
case:
In a new study entitled "The Illusion of Devil's Advocacy: How the
Justices of the Supreme Court Foreshadow their Decisions During
Oral Argument," Sarah Shullman came up with a surprisingly simple
and accurate way of predicting outcomes based on the number and
tenor of oral argument questions by justices.
Shullman's article, in The Journal of Appellate Practice and
Process, reports on oral arguments in 10 cases she observed during
the October 2002 term. As she watched, she tallied the number and
tenor -- helpful or hostile -- of all the questions asked by all
the justices. Then a student at Georgetown University Law Center,
Shullman is now an associate at Steel Hector & Davis in West Palm
Beach, Fla.
After seven of the 10 cases she studied were decided, Shullman
looked for correlations -- and found them. In all of the cases, the
justices in aggregate asked more questions, and more hostile
questions, of the party that ultimately lost the case. The model of
the devil's advocate -- peppering the side you favor with tough
questions -- did not appear prevalent enough to derail this
conclusion. . . .
In any event, on the basis of her early success, Shullman proceeded
to predict the remaining three cases she had charted that were
still pending before the high court. And bingo! She was correct
each time. A couple of justices strayed and asked more questions of
the side they ultimately favored, but overall the justices turned
out to be "quite predictable," she says. . . .
Shullman acknowledges that her sample was small, but 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.
"The secret to successful advocacy," Roberts deadpanned in
conclusion, "is simply to get the Court to ask your opponent more
questions."
An 86 percent success rate in making predictions compares favorably
with that of other players in the growing field of Supreme Court
prognosticators. Political scientists have gotten into the game to
test the relative importance of precedents and politics in Supreme
Court decision making. The Supreme Court Forecasting Project, based
at Washington University in St. Louis, used statistical models and
a panel of experts to predict the results in the cases argued in
the 2002 term. The statistical method, based on data such as the
circuit of origin and an analysis of precedents, came out right 75
percent of the time, while the human experts predicted outcomes
correctly in 59 percent of the cases.
At a symposium on the project, Linda Greenhouse of The New York
Times got into the spirit of things and looked back at her stories
from the same term and found that in the 16 decided cases in which
she ventured a prediction, she was right 75 percent of the time.
It's not surprising that this might be so, but the numbers in the
small-scale studies being discussed were stronger than I would have
thought. The story didn't indicate whether any significance tests were
done on the data, and without the exact baseline on the % of reversals
of the lower court for these cases, I couldn't do the statistics
myself.
I went back and roughly counted the number of questions in [2]Raich,
the marijuana Commerce Clause case that Randy Barnett argued. Randy
got MANY more questions than the government, a bad sign for Randy (and
the constitution).
In skimming the [3]transcript in Raich, at [4]pages 40-41 I also
noticed a somewhat playful disagreement between Barnett and Justice
Scalia over what "home consumption" of wheat meant in Wickard v.
Filburn. Randy said it included wheat consumed by the livestock on the
farm; Scalia disagreed, saying it meant wheat eaten by the farmer and
his family. I went back and read Wickard. Although there are some
ambiguous passages, two passages are clear:
It is urged that under the Commerce Clause of the Constitution,
Article I, ยง 8, clause 3, Congress does not possess the power it
has in this instance sought to exercise. The question would merit
little consideration since our decision in United States v. Darby,
312 U.S. 100, n12 sustaining the federal power to regulate
production of goods for commerce, except for the fact that this Act
extends federal regulation to production not intended in any part
for commerce but wholly for consumption on the farm. HN3The Act
includes a definition of "market" and its derivatives, so that as
related to wheat, in addition to its conventional meaning, it also
means to dispose of "by feeding (in any [*119] form) to poultry or
livestock which, or the products of which, are sold, bartered, or
exchanged, or to be so disposed of." n13 Hence, marketing quotas
not only embrace all that may be sold without penalty but also what
may be consumed on the premises.
And this:
had he chosen to cut his excess and cure it or feed it as hay, or
to reap and feed it with the head and straw together, no penalty
would have been demanded. Such manner of consumption is not
uncommon.
So Randy is correct on Wickard. Let's hope he is determined to be
correct: that the interstate commerce clause applies to "interstate
commerce," not intrastate noncommerce.
References
1. http://www.law.com/jsp/article.jsp?id=1115802310553
2. http://volokh.com/archives/archive_2004_12_12-2004_12_18.shtml#1102980187
3.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-1454.pdf
4.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-1454.pdf
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