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Thursday, July 6, 2006

Predicting the Supremes

I cleaned up my home office last weekend and finally tackled the two file cabinet drawers filled with materials from law school.  Among the files were my notes from the Supreme Court seminar taught by Charles Alan Wright, which was undoubtedly my favorite class in law school.

Tomorrow is the sixth anniversary of Professor Wright's death, from whom I took three courses (and from whom I received my two worst grades in law school and one of my best!).  I can't say anything about Professor Wright that hasn't been said, better, by others, but I will note that my file of correspondence with him is something I treasure (particularly those parts where he kindly if improbably identifies my poor grade as being a function of his "poor examining technique").

In any event, I thought a slow summer morning might be a good time to review the outcomes in the cases we discussed in the seminar.  Each of nine students (chosen at random) represented a Supreme Court Justice for the term, and we predicted votes and reasons for nine cases.  I was in the role of Justice Stevens.

So, for your slow summer morning reading pleasure, an overview of how we did:

  1. In re Korean Airlines Disaster, 524 U.S. 116 (1998). 
    Our prediction: 6-3 affirmal, with Breyer, Ginsburg & Kennedy dissenting. 
    CAW's prediction: 9-0 affirmance (my notes say he was "confused as to why [the Court] granted cert."). 
    Outcome: 9-0 affirmance:

    Personal representatives of passengers on airplane shot down over Sea of Japan sued airline under Warsaw Convention. After airline's liability was established in consolidated litigation, the United States District Court for the District of Columbia, Aubrey E. Robinson, Jr., J., 935 F.Supp. 10, granted airline's motion to dismiss plaintiffs' nonpecuniary claims, and the Court of Appeals, Randolph, Circuit Judge, affirmed. On writ of certiorari, the Supreme Court, Justice Thomas, held that Death on the High Seas Act (DOHSA) precluded any general maritime survival action to permit plaintiffs to recover damages for passengers' predeath pain and suffering.

  2. U.S. v. Scheffer, 523 U.S. 303 (1998).
    Our prediction: 7-2 reversal, with Ginsburg & Breyer dissenting.
    CAW's prediction: 7-2 reversal, with Ginsburg & Stevens dissenting.
    Outcome: 8-1 reversal, with Stevens dissenting (and a separate concurrence from Kennedy, O'Connor, Ginsburg, & Breyer):

    Accused was convicted by general court-martial, H. Martin Jayne, J., of uttering bad checks, wrongfully using methamphetamine, failing to go to his appointed place of duty, and absenting himself from his unit without authority. The United States Air Force Court of Criminal Appeals, 41 M.J. 683, affirmed as modified. Review was granted. The United States Court of Appeals for the Armed Forces, Gierke, J., 44 M.J. 442, reversed. On certiorari, the United States Supreme Court, Justice Thomas, held that per se rule against admission of polygraph evidence in court martial proceedings did not violate the Fifth or Sixth Amendment rights of accused to present a defense.

  3. Bragdon v. Abbott, 524 U.S. 624 (1998).
    Our prediction: 5-4 reverse, with Souter, Ginsburg, Breyer & Stevens dissenting.
    CAW's prediction: 6-3 reversed, with O'Connor leading the dissent.  (I think I'm reading my notes correctly on this one, but they're a little fuzzy.)
    Outcome: 6-3 vacated & remanded, with partial dissents from O'Connor, Rehnquist, Thomas, & Scalia:

    Patient infected with the human immunodeficiency virus (HIV) brought action under the Americans with Disabilities Act (ADA) against dentist who refused to treat her in his office. The United States District Court for the District of Maine, 912 F.Supp. 580, granted summary judgment in favor of patient, and dentist appealed. The First Circuit Court of Appeals, 107 F.3d 934, affirmed. Dentist petitioned for certiorari. The Supreme Court, Justice Kennedy, held that: (1) HIV infection is a “disability” under the ADA, even when the infection has not yet progressed to the so-called symptomatic phase, as a physical impairment which substantially limits the major life activity of reproduction, and (2) with regard to “direct threat” provision of the ADA, the existence, or nonexistence of a significant health risk from treatment or accommodation of a disabled person must be determined from standpoint of the person who refused the treatment or accommodation, but the risk assessment must be based on medical or other objective evidence, and not simply on that person's good-faith belief that a significant risk existed.

  4. U.S. v. U.S Shoe Corp., 523 U.S. 360 (1998).
    Our prediction: 8-1 affirmance, with Ginsburg dissenting.
    CAW's prediction: 7-2 affirmance, with Ginsburg & Kennedy dissenting.
    Outcome: Unanimous affirmance, with opinion by Ginsburg (who presumably got some sort of narrower argument for being in the unanimous opinion):

    Exporter brought action against United States, seeking refund of harbor maintenance tax (HMT) paid for exported articles on ground that HMT was unconstitutional as applied to exports. On cross-motions for summary judgment, a three-judge panel of the Court of International Trade, DiCarlo, Chief Judge, 907 F.Supp. 408, granted summary judgment for exporter. United States appealed. Sitting as a five-judge panel, the Court of Appeals for the Federal Circuit, Michel, Circuit Judge, 114 F.3d 1564, affirmed. Certiorari was granted. The Supreme Court, Justice Ginsburg, held that: (1) Court of International Trade properly exercised jurisdiction over exporter's challenge to constitutionality of HMT, and (2) HMT violated Export Clause as applied to exports.

  5. Burlington Indust. v. Ellerth, 524 U.S. 742 (1998).
    Our prediction: 8-0 reversal, with Justice O'Connor mysteriously missing.
    CAW's prediction: 9-0 reversal.
    Outcome: 7-2 reversal, with Scalia & Thomas dissenting:

    Employee who had suffered no adverse job consequences as result of alleged sexual harassment by supervisor brought suit against former employer under Title VII alleging that sexual harassment forced her constructive discharge. The United States District Court for the Northern District of Illinois, Castillo, J., 912 F.Supp. 1101, entered summary judgment in favor of employer. The Seventh Circuit Court of Appeals, 123 F.3d 490, reversed. Employer petitioned for certiorari. The Supreme Court, Justice Kennedy, held that: (1) employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate or successively higher authority over employee; (2) in those cases in which employee has suffered no tangible job consequences as result of supervisor's actions, employer may raise an affirmative defense to liability or damages; and (3) affirmative defense requires employer to show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that employee unreasonably failed to take advantage of any preventive or corrective opportunities provided or to avoid harm otherwise.

  6. Feltner v. Columbia Pictures, 523 U.S. 340 (1998).
    Our prediction: 7-1 reversal on various rationales (some statutory, some Constitutional), with Thomas dissenting and O'Connor mysteriously absent.
    CAW's prediction: 9-0 reversal, all on Constitutional grounds.
    Outcome: 9-0 reversal with a separate Scalia opinion:

    Owner of copyrights in television programs sued television station owner for infringement. The United States District Court for the Central District of California, Edward Rafeedie, J., granted summary judgment to copyright owner. Television station owner appealed. The Court of Appeals for the Ninth Circuit, 106 F.3d 284, affirmed in all relevant respects. Television station owner filed petition for writ of certiorari. The Supreme Court, Justice Thomas, held that: (1) Copyright Act does not grant right to have jury assess statutory damages, but (2) Seventh Amendment provides right to jury trial on all issues pertinent to award of statutory damages in copyright infringement action, including amount itself.

    Of note, among the materials Professor Wright distributed to us was a letter from none other than now-Chief Justice John Roberts, who argued the Feltner case for the winning side.  He claimed to be "anxiously await[ing] word on [the] seminar's vote."
  7. U.S. v. Balsys, 524 U.S. 666 (1998).
    Our prediction: 5-4 reversal, with Breyer, Stevens, Scalia & Souter dissenting.
    CAW's prediction: 8-1 reversal, with Stevens dissenting.
    Outcome: 7-2 reversal, with Ginsburg & Breyer dissenting:

    Government sought enforcement of administrative subpoena issued by the Director of the Office of Special Investigations of the Criminal Division of the United States Department of Justice (OSI), who sought to determine whether resident alien lied in his immigration application about his activities during World War II. The United States District Court for the Eastern District of New York, Sterling Johnson, Jr., J., 918 F.Supp. 588, enforced subpoena, and alien appealed. The Court of Appeals for the Second Circuit, Calabresi, Circuit Judge, 119 F.3d 122, vacated the order. Certiorari was granted. The Supreme Court, Justice Souter, held that concern with foreign prosecution was beyond scope of Fifth Amendment privilege against self-incrimination.

  8. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1998).
    Our prediction: 9-0 affirmance.
    CAW's prediction: 7-2 affirmance, with Scalia & Rehnquist dissenting.
    Outcome: 8-1 mostly, with O'Connor and Breyer dissenting in part and Rehnquist dissenting:

    Nonprofit public interest organizations and individuals who regularly participated in Colorado's initiative and referendum petition process brought § 1983 action against state officials, challenging statutes regulating petition process. The United States District Court for the District of Colorado, 870 F.Supp. 995, upheld certain statutes and struck others. Parties cross-appealed. The Court of Appeals for the Tenth Circuit, 120 F.3d 1092, affirmed in part and reversed in part. Certiorari was granted. The Supreme Court, Justice GINSBURG, held that: (1) Colorado statute requiring that initiative-petition circulators be registered voters violated First Amendment free speech guarantee; (2) Colorado statute requiring that initiative-petition circulators wear identification badge bearing the circulator's name violated First Amendment free speech guarantee; and (3) Colorado statute requiring that proponents of an initiative report names and addresses of all paid circulators and amount paid to each circulator violated First Amendment free speech guarantee.

  9. Swidler & Berlin v. U.S., 524 U.S. 399 (1998).
    Our prediction: Privilege question - 5-3-1 affirm, with Stevens, Breyer & Ginsburg dissenting and Souter sitting out; work product issue - 7-1-1 affirm, with Kennedy dissenting and Souter sitting it out.
    CAW's prediction: Privilege question - 6-3 reverse, with Kennedy, Ginsburg & Breyer dissenting; work product - Court won't reach the question.
    Outcome: 6-3 reversal with O'Connor, Scalia & Thomas dissenting; didn't reach work product:

    Attorney and his law firm moved to quash grand jury subpoenas obtained by the Office of Independent Counsel during a federal investigation. The United States District Court for the District of Columbia, John Garrett Penn, Chief Judge, granted the motion, and appeal was taken. The Court of Appeals for the District of Columbia Circuit, 124 F.3d 230, reversed and remanded. Certiorari was granted. The Supreme Court, Chief Justice Rehnquist, held that the attorney-client privilege survives the death of the client.

So, there you have it.  It's as much for my entertainment as anything, but it is interesting to go back and look over predictions -- and it sure was a surprise to come across the Roberts letter.  Perhaps I'll see if I can track down some other participants in the seminar in other years.

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