How Is Justice Roberts Like Professor Plum?
Tuesday, May 29, 2007
At the blackjack tables in Las Vegas, they would be called card counters.
Among the rather small community of professors, lawyers and journalists who obsess about the Supreme Court, they are called, well, geeks.
And this is their time of year, when they can employ an unusual calculus to try to predict not only the outcome of the court's big pending cases but also which justice will write the opinion.
(Or perhaps it is by deducing which justice will write the opinion that they predict the outcome. No matter.)
The formula is to divide the number of issued decisions by the total each justice has written, factored by when the case was argued.
And so, for instance, in the pending cases of the race-based school-desegregation plans being challenged in Louisville and Seattle, the opinions' author and outcome are foretold like the prediction in a game of Clue:
Chief Justice John G. Roberts Jr. With a 5 to 4 majority. In favor of striking down the school admission plans.
"At the end of the term, while everyone's sitting around and waiting for the opinions, it's a pretty good parlor game," said Thomas C. Goldstein, a Supreme Court practitioner at the law firm Akin Gump, who started a discussion with the Roberts prediction at Scotus Blog, a Web site he founded.
He's far from alone in foreseeing that outcome, and here's the group reasoning:
Of the cases that were heard during the court's oral argument session that began Nov. 27 and ended Dec. 5, only three have not yet been announced. Two of them are the race cases, the other an equal-pay dispute. Every justice has written an opinion from that session except Roberts and Justice Samuel A. Alito Jr.
If there is a conservative majority ready to rule against the programs, as many thought likely after hearing the questioning at the argument, it would make sense for Roberts to assign himself what will be one of the court's most closely watched cases of the term.
There are predictions on other cases as well, and it's all speculation, of course. Justice Anthony M. Kennedy could get unpredictable. A justice who thinks he's writing a majority opinion loses a vote and it ends up a dissent. The court can surprise sometimes.
The practice doesn't seem to have a name, but perhaps Goldstein has come up with something. In his blog discussion, he called it Sudoku for "S. Ct. geeks."
The Letters of the Law
You'll be shocked to learn that some lawyers have found loopholes to get around the court's limits on how long a brief may be.
To squeeze more words into the established page limits, they put text in footnotes, which can be printed in tinier fonts. They reduce the space between lines of type. They don't indent as deeply as they should.
So the court has proposed new rules, which would require text to be set only in New Century Schoolbook 12-point type, with at least 2-point leading between lines. Footnotes may be no smaller than 10-point. Quotations of 50 words or more must be indented.
And most dastardly, the whole thing would be limited by word count. The average merits brief, for instance, could be no more than 15,000 words, with a certification letter attached.
There must be a way around that.