The 10th Justice: Predictions from FantasySCOTUS.net

In Citizens United, all of the justices had a statistically significant SMR–the conservative justices significantly above 1.0, and the liberal justices significantly below 1.0. As the data suggest, and the ultimate outcome corroborated, there was a slim chance of any of the liberal justices joining the conservatives in a majority opinion. Yet, there was a chance that a conservative justice might have defected and joined the liberal justices to affirm the lower court–specifically Justice Kennedy, whose high SMR of 1.30 indicated he was the Justice most likely to “defect” from the conservative majority. Chief Justice John Roberts, with an SMR of 1.26, was also a possible defector, perhaps reflected in his conciliatory concurring opinion.

In contrast, none of the SMR are statistically significant in the Arizona cases. This suggests that the coalitions in Citizens United have definitely formed, and will almost certainly reunite for the opinion in these consolidated cases. Members were less certain about the outcome of Citizens United than the outcome in the Arizona cases. In light of Justice Kennedy’s resounding vote in Citizens United in favor of striking down expansive campaign finance laws, the votes in the Arizona cases are on a sound precedential footing.

Justice Stephen Breyer’s low SMR of 0.50, indicates that members of FantasySCOTUS perceive that he has very strong feelings about this case. Although this score it is not statistically significant due to sample size, Breyer will likely carry the mantle of Stevens’ Citizen United dissent, and write the dissenting opinion.

Kentucky v. King
FantasySCOTUS Prediction: Reverse

Kentucky v. King, argued on Jan. 12, 2011, considers under what circumstances can lawful police action impermissibly “create” exigent circumstances that preclude warrantless entry.

At a 99% confidence level, 84% of FantasySCOTUS members (91/134) predicted that the Supreme Court will reverse the Supreme Court of Kentucky. 

None of the SMRs are statistically significant. This SMR data presents an archetypal 5-4 conservative-liberal split, with the “law and order” bloc holding strong. Neither side will budge; no one will defect. Taken in consideration with the certainty of the outcome prediction for this case (reverse), the SMRs further suggest that there is little opportunity for either side to chip away votes or strategically change votes in order to limit the eventual decision.

Revisiting Connick v. Thompson
FantasySCOTUS Prediction: Reverse
Outcome: Reverse

Justice Thomas’ opinion in Connick v. Thompson — which Dahlia Lithwick called “one of the meanest Supreme Court decisions ever” — denied John Thompson a $14 million jury award for wrongly spending nearly two decades on death row, where the Prosecutor had concealed exculpatory evidence. Justice Scalia issued a concurring opinion, largely responding to Justice Ruth Bader Ginsburg’s dissent.

At a 99% confidence level, 115 members of FantasySCOTUS (62%) correctly predicted that the Court would reverse the 5th Circuit. Most interestingly, the SMR data for this case presaged that Justice Thomas could be author the majority opinion, and that Justice Scalia could feel the need to write a concurring opinion responding to the dissent.