Predictive Betting and a Freaky Friday Power Structure

Speculating on the outcome of upcoming impact cases like Burwell and Obergefell—as well as some recent sneaky-impact cases like Noel Canning and Bond—produces counterintuitive results.  It would at least make sense to think that the importance of case assignments could flow in order of seniority, or at least close to it.  And it’s doubly so on this Court—some of the senior justices are so powerful and so publicly respected.  Justice Scalia has been perhaps the most vocal conservative thought leader over the past 25 years and is the patron saint of originalism and textualism.  Justice Thomas floats ideas that are initially insane and then command five votes ten years later.  Compare Printz (an individual understanding of the Second Amendment is ludicrous), with Heller (on second thought, yes).    Justice Sotomayor has the most compelling biography on the Court in a landslide, and she is the only Justice who routinely reduces non-lawyer audiences to tears and inspires the masses.  And Justice Ginsburg is easily the biggest celebrity on the current Court—I’m pretty sure that no prior Justice, with the exception of the exceptionally foxy Chief Justice Taft, has had his or her own t-shirt line.

But these celebrity justices don’t necessarily get the plum assignments, at least anymore.  And more importantly, they aren’t who I expect to wield power on the Court, day to day.  That’s the weird thing—to a T, the distribution of who I expect to get the bell-ringing cases and do work changing opinions varies almost inversely to the celebrity of the justices.  Let’s briefly power-rank the top four in a holistic sense:

  • The Chief: Good God.  There hasn’t been a more powerful, charismatic Chief since Warren.  He’s an absurd writer, he’s smart, he’s handsome, he’s a good administrator.  And he has a preternatural sense for when to assign and when to take it himself.  The Chief, over the past ten years, has absolutely—but quietly—alchemized federal law.  He assigns himself some barnburners:  see McCutcheonParents Involved.  He uses his assignment power to nail other cases—assigning Alito the final two cases of October Term 2013 was a shrewd and brilliant move (Hobby Lobby and Harris v. Quinn).  And perhaps most importantly, the Chief subtly moves federal law in his direction in even factually banal cases.  Bond v. US was kinky (a jilted wife poisoning her husband’s lover), but the issue presented was a relatively tame application of the Commerce Clause.  The Chief used the threat of the three-fold conservative hydra to cosign Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan to a pretty damned important re-understanding of interpretational canons—announcing in the process that all federal law must be interpreted to accord with limited federal power.  That’s not a bad day’s work for one lady who poisoned another lady in Pennsylvania.  The Chief is a wizard.
  • Justice Kennedy: He’s been covered to death.  Kennedy reliably holds the swing vote on cases that hit the New York Times editorial page.  Everyone knows that he’s a center-right Justice; he’s a drum-banger on free speech and campaign finance, has shifted steadily right on abortion, is a toss-up on the death penalty, and leans left on gay marriage.  He is essentially Justice Alito’s equivalent on women’s rights, and he is only narrowly more centrist on affirmative action and voting rights.  Kennedy is easy to predict, but he draws plum assignments because the cases in which his ideology centers him are the cases people care about.
  • Justice Alito: The thinking man’s Scalia.  Justice Alito scares liberals more than anyone except the Chief.  He’s essentially the Chief’s further-right brother—a brilliant, likable-if-not-charismatic, clear and effective writer who articulates an extremely hardline conservative vision.  I don’t get the impression that any current Justice is arrogant, but Alito has bided his time exceptionally well—he’s been dinged in the press for an occasional bout of ‘rudeness,’ but he has never been perceived to angle for assignments that were above his status among the Nine or to try to outstep his bounds.  In this one realm, he’s the opposite of Kagan—Alito never tried to make a splash in “dog” cases.  But they were still quietly brilliant—in talking to a group of 2Ls, I used his Atlantic Marine opinion on federal venue choice provisions to illustrate a perfectly clean, tidy, perfect opinion that didn’t involve abortion or execution.  He’s a brilliant technocrat, but when you turn him loose on a politically-charged opinion:  look out.  Alito lets loose quiet, wry fire-bombings.  Hobby Lobby, reviled as it was, is a brilliant opinion.  And perhaps even more pronounced is the difference between his Windsor dissent and Scalia’s:  Scalia’s reads as the angry invective of another generation, genuinely perturbed at the prospect of equal rights; Alito’s is the calm, quiet introspection of a cautious man not eager to topple the social order.  The difference is either brilliant or insidious, depending on your perspective.  One thing is for sure:  if the Chief feels his clerks are overworked, and needs a thoroughly conservative opinion nailed, Alito is the go-to guy for about 25 years.
  • Justice Kagan: Up-and-coming.  She’s the only person on the Court that gives the Chief a run for his money in terms of raw IQ.  She’s charismatic, she’s personable, and she’s bred to sway colleagues.  With due respect to Justice Ginsburg, the biggest home run for a Democratic president since William Douglas.  What a freakin champ.  The Chief already seems to like her, and he trusts her with marginally big opinions (somewhat better than the dogs she should be getting at this point).  But what really sells her influence so far is not her majority work; it’s what she’s done in dissent.  She’s the spokeswoman for the left when they absolutely have to nail a dissent and can afford to give it to someone other than Ginsburg:  Ginsburg still takes the 10/10 opinions (Shelby County; NFIB), but she passes off the 9/10s to Kagan (Arizona Free Enterprise Club; County of Greece).  Even in the sneakily important 6/10s, the dissent trusts Kagan to nuke the majority (American ExpressGenesis Healthcare).  More than that, Kagan’s willingness to cross lines has gotten genuinely interesting—she was the only Democrat to join the majority in White v. Woodall, a sneakily-important 2254 habeas case, and she authored a dissent joined by Scalia, Thomas, and Kennedy in Yates v. US.  Just in passing, it was the best dissent (in purely technical terms) authored in the past 5 years. And it was a damn bold move—the opinion addressed the same interpretational canons that will arise in King v. Burwell, and Kagan took some pretty anti-ACA stances in the process.

These are obviously one person’s arbitrary rankings, and who knows if they accurately reflect the Court.  But it’s interesting to note that the apparent power structures at One First flow entirely independently of outside celebrity—indeed, they almost seem to run contrary to it.  The Justices we think about when asked to name some sitting on the Supreme Court are not the ones who wield true power.  Nobody except the Justices and the clerks know anything, but it seems smart to pay attention to the quiet people, to listen to those who talk less.  They’re the ones shaping the law.

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Predictive Betting and a Freaky Friday Power Structure

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