Questions in Supreme Court give hints of winner

NY Times:

A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side will win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Chief Justice Roberts heard about Ms. Shullman’s study while he was still a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting.

“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

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The two studies were suggestive, but they were the work of amateur empiricists. Ms. Shullman looked at only 10 cases, and Chief Justice Roberts about three times as many.

A new study by four political scientists to be published the Washington University Journal of Law and Policy follows up on the earlier ones and applies some real muscle to the question. It looks at some 2,000 arguments and more than 200,000 questions from the justices.

You might quibble with the methodology. For starters, not every question is created equal. Consider, for instance, this one from Justice Stephen G. Breyer, who was battling laryngitis in 2006. “Can you hear me all right?” he asked.

But the studies’ authors say this sort of thing is “random noise” that washes out over thousands of cases.

It turns out that Ms. Shullman was right: The relative number of questions asked is a powerful predictor of who will win. If the two sides receive the same number of questions, the likelihood of reversal is 64 percent, which is in line with the usual probabilities; the court reverses more often than it affirms.

But if the side seeking reversal gets 50 more questions than its adversary, the likelihood of a victory drops to 39 percent. And if that side manages to get the maximum number of extra questions in the study, which was 94, the likelihood of winning drops to 18 percent.

“The more attention justices pay to a side,” said Timothy R. Johnson, who teaches law and political science at the University of Minnesota and is one of the new study’s authors, “the more likely that side is to lose.”

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Professor Johnson said those lawyers would be wise to avoid questions.

“The old adage that you should keep your head down may be the way to go,” he said. “The advocate who tried to throw in the kitchen sink and try every argument in the world may be heading for trouble.”

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As someone who has arbitrated cases for over 30 years, I can attest to that adage. It seems to be the case that the weaker the argument or the facts the more issues are thrown in the mix with the hope that one may work. It rarely does.

I think there is another reason why the side in trouble gets the most questions. The justices want to give them a chance to address their weaknesses out of a sense of fairness.