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FantasySCOTUS and {Marshall}+ Predictions for Supreme Court’s October Sitting

How will the Justices decide cases involving the 4th Amendment, Religious Liberty, and Antitrust Law?

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-predicting 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 this post, we will offer predictions for cases argued during the October sitting: Heien v. NCDart Cherokee Basin Operating Co., v. OwensHolt v. HobbsWarger v. ShauersInteg. 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.

the-tenFantasySCOTUS Crowds Marshall-Animated{Marshall}Algorithm
Heien v. North Carolina

5-4 Affirm

5-4 Affirm

Dart Cherokee Basin Operating Co., v. Owens 9-0 Affirm 7-2 Reverse
Holt v. Hobbs 9-0 Reverse 7-2 Reverse
Warger v. Shauers 9-0 Affirm 9-0 Reverse
Integrity Staffing Solutions v. Busk 5-4 Affirm 6-3 Reverse
N.C. Board of Dental Examiners v. FTC 9-0 Affirm 5-4 Reverse

 

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.

 

LexPredict.com Forecast for Heien v. North Carolina
Roberts Scalia Breyer Alito Sotomayor Kagan Court
FantasySCOTUS 81% Aff 79% Aff  74% Aff 84% Aff  70% Rev  59% Rev 85% Aff  69% Rev  63% Rev 5-4
Aff
{Marshall}+ 63% Aff 70% Aff 55% Aff 71% Aff 74% Rev 59% Rev 63% Aff 78% Rev 79% Rev 5-4
Aff
Agree?

Difference 18% 9%  19% 13%  4% 0% 22%  9%  16%  

 

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.

 

LexPredict.com forecast for Dart Cherokee Basin Operating Co., v. Owens
Roberts Scalia Breyer Alito Sotomayor Kagan Court
FantasySCOTUS 71%
Aff
70%
Aff
74%
Aff
70%
Aff
66%
Aff
68%
Aff
70%
Aff
70%
Aff
71%
Aff
9-0
Aff
{Marshall}+ 74% Rev 74% Rev 70% Rev 76% Rev 60% Rev 62% Rev 69% Rev 53% Aff 56% Aff 7-2
Rev
Agree?

Difference 45% 44% 48% 46% 26%  30% 39% 17% 15%  

 

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.

 

LexPredict.com Forecast for Holt v. Hobbs
Roberts Scalia Breyer Alito Sotomayor Kagan Court
FantasySCOTUS 71% Rev 65% Rev 73% Rev 63% Rev 83% Rev 81% Rev 69% Rev 83% Rev 83% Rev 9-0
Rev
{Marshall}+ 58% Rev 52% Aff 57% Rev 53% Aff 68% Rev 71% Rev 52% Rev 68% Rev 65% Rev 7-2
Rev
Agree?

Difference 13% 17% 16% 16% 15% 10% 17% 15% 18%  

 

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.”

accuracy-vote-countsFor 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.

LexPredict.com Forecast for Warger v. Shauers
Roberts Scalia Breyer Alito Sotomayor Kagan Court
FantasySCOTUS 89% Aff 86% Aff 88% Aff 87% Aff 81% Aff 86% Aff 87% Aff 80% Aff 85% Aff 9-0
Aff
{Marshall}+ 61% Rev 61% Rev 61% Rev 60% Rev 66% Rev 69% Rev 60% Rev 68% Rev 67% Rev 9-0
Rev
Agree?

Difference 28%  25% 27%  27% 15%  17% 27% 12% 18%  

 

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.

 

LexPredict.com Forecast for Integrity Staffing Solutions v. Busk
Roberts Scalia Breyer Alito Sotomayor Kagan Court
FantasySCOTUS 65% Rev 79% Rev 54% Aff 79% Rev 78% Aff 75% Aff 73% Rev 80% Aff 78% Aff 5-4
Aff
{Marshall}+ 59% Rev 60% Rev 58% Rev 60% Rev 55% Aff 52% Rev 61% Rev 53% Aff 52% Aff 6-3
Rev
Agree?

Difference 6% 19% 12% 19% 23% 27% 12% 27% 26%  

 

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.

 

LexPredict.com Forecast for North Carolina Board of Dental Examiners v. Federal Trade Commission
Roberts Scalia Breyer Alito Sotomayor Kagan Court
FantasySCOTUS 78% Aff 76% Aff 76% Aff 76% Aff 68% Aff 71% Aff 77% Aff 66% Aff 71% Aff 9-0
Aff
{Marshall}+ 62% Rev 65% Rev 57% Rev 68% Rev 56% Aff 54% Aff 65% Rev 58% Aff 63% Aff 5-4 Rev
Agree?

Difference 40% 41% 33% 44% 12% 17% 42% 8% 8%  

 

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).