Joel Jacobsen

Want to amaze your friends with your ability to predict the outcome of cases argued in the United States Supreme Court?  Now you, too, can master the arcane arts of American Kremlinology.  There are only a handful of rules to learn, and they fit snugly in just three categories.

The first category consists of gimmes - the easy cases, the ones that require no more thought than the justices themselves give to them.  The second category are the negative rules: the classic mistakes.  The third category contains the rules of prediction proper. 

(But all, it must be remembered, are subject to the 5% rule – even the gimmes.  In roughly 5% of cases, the justices will predictably depart from their settled patterns just to prove they can.  Grand jurors do the same thing.)

Category One: The gimmes.

Capital litigation.  Scalia and Thomas will always vote to uphold a death penalty.  (See post 131.)

Justice Ginsburg's magical thinking.  Justice Ginsburg is committed to the idea that any federal judge is, by virtue of that little ceremony involving pixie dust that traditionally concludes Senate confirmation hearings, superior to any state court judge.  She will always vote in favor of increased federal oversight of state criminal courts.  (See post 243.)  Except, that is, when she votes to slap down the Ninth Circuit, when a greater principle is at stake.  (See "cui bono", below.)

Ninth Circuit slapdowns.  Whenever the Supreme Court agrees to hear a Ninth Circuit decision in a habeas corpus case, it means the Ninth Circuit will be slapped down, usually by a unanimous opinion.  Most recent example: last month's Bockting decision, in which not one of the nine could find a good word to say about the Ninth Circuit.  This isn't because the Ninth Circuit is particularly "liberal" (see "the classic mistakes," below), but because it's so large.  Its judges know the numbers are on their side.  The Supreme Court can't - or, more accurately, can't be bothered - to review more a tiny percent of their decisions, so they don't have any incentive to do what the Supreme Court says.  They can make up the law as they go along.  As a practical matter, the Ninth Circuit is the Supreme Court in the far West.

Every year, the Supreme Court goes through the ritual of showing what it could do to the Ninth Circuit, if it wanted to.  The Ninth Circuit, you'll notice, is not intimidated.  Its judges know they're going to be reversed every time the Supreme Court grants certiorari in one of their habeas cases, but they'll have issued several dozen additional decisions by then.

Category Two: The classic mistakes.

Republican / Democrat.  (Note: Bush v. Gore is the 5% rule in operation.)  Newspaper reporters constantly make the mistake of assuming that because the Court is "turning right"- a turn it has been making since Clement Haynsworth - it will seek to accommodate Republican talking points.  But the justices consider it very vulgar to be seen doing partisan politics.  Not because that would be improper for members of the Court - if they did it, then by definition it wouldn't be improper - but because it's beneath the Court's dignity.  Being above the fray is the mark of the Court's superiority to democracy.  And if the Court weren't superior to democracy, what possible justification could it have for thwarting the people's will so often?

Right-left ideology.  This classic mistake is related to the last, but it's not the same.  While it's easy to guess the presidential votes of the justices - after all, they voted in public in 2000 - few of the cases heard by the Supreme Court are useful fodder for, say, the sort of questions used to vet prospective Iraq rebuilders during the heady first days of the occupation.  Most Supreme Court cases can be made to fit into the freeze-dried categories familiar from Heritage Foundation press releases only by trimming them of exactly those subtle and pseudo-subtle intricacies most calculated to excite the minds of Supreme Court clerks.

It's a category mistake to think of the world of the courtroom as part of the real world.  The courtroom is its own little biosphere.  Analyzing Supreme Court decisions with the template used to analyze congressional politics is like applying NBA rules to Nintendo.

The legal merits.  Unlike the first two, this classic mistake is most commonly made by lawyers, not journalists.  The legal merits of a case in the Supreme Court aren't necessarily irrelevant to the decision reached, but at most they serve as tiebreaker.  That's not a cynical remark.  The Court makes the merits meritorious.  Referring to the "merits" of the Supreme Court cases like referring to the artistic value of a canvas after stretching and prepping but before the first color has been added.  The Court doesn't decide cases on the merits; it decides cases and then tells us what the merits were.

The decision-making matrix

Now, as Mick Jagger said, we get down to the nitty-gritty.  Once you're sure you've avoided the classic mistakes, and you've put the gimmes to one side, you're ready to predict Supreme Court decisions.  It's a three-step process, as simple as A-B-C.

A.  Cui bono?  "Let Cassius's famous question, Who benefited? be asked about these people."  In the overwhelming majority of Supreme Court cases, this is the decisive consideration.  Just ask yourself these questions:

1.  What result would be best for the individual justice writing the opinion or the Court as an institution?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

2.  What result would be best for the federal judiciary?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, proceed to the next question.

3.  What result would be best for judges generally, state as well as federal?  If the answer is clear, that is the result of Court will reach.  If the answer is unclear, move on to "status of the parties."

B.  Status of the parties.  If the cui bono decision-making matrix doesn't lead to a clear answer, the justices look to the respective social statuses of the parties.  Probably they don't do this quite consciously, but middle class, middle-aged, educated white male defendants do very well in the Supreme Court, as long as their victims are people the justices (and their clerks) find it less easy to identify with.  The important thing isn't the defendant's status per se, but his status relative to that of his victim.  (See post 102 and post 228.) 

When applying both A and B, keep in mind that judges are, by self-selection, people who enjoy wielding power.  In fact, "wield power" is a judge's job description.  It's not a bad thing that judging attracts people who find power attractive.  On the contrary, there are few things more useless than an indecisive judge.  But it means that the self-interest of judges will always bias them to favor the ruling that increases their own power, or the power of their institution.  That's the cui bono rule.  After all, you have to possess power before you can use power to do good.  So if you want to do the maximum good, you first have to maximize your power.  In fact, maximizing your power is the same as acting for the good of the Republic.  (See "Justice Ginsburg's magical thinking", above.)

The other side of the coin, however, is that people who like power tend to have little time for weaklings.  The conditions that manufacture "born victims" are well-understood but the psychology is of less than no interest to those in whom self-defeating behavior arouses revulsion rather than pity.

C.  Legal arguments.  This is where the lawyers come in.  We'd like to think we have greater influence than this placement suggests, but that's vanity talking.  I do believe we have a marginal influence in many cases, and a marginal influence will make all the difference in marginal cases.  But, as every lawyer knows, you can only play the cards you've been dealt.  Even your opportunities for cheating are seriously circumscribed.

Suitably modified to accommodate local conditions, these simple rules explain the inner workings of every other court in the country, too.

And now you know!