The US Supreme Court ruled on Friday, by five votes to four, that same-sex couples are constitutionally entitled to marry. The previous day, the same court upheld by six votes to three a key funding platform of the Affordable Care Act (ACA), sometimes termed “Obamacare.”
What do these landmark decisions tell us about the way the Supreme Court might rule in the months and years ahead? Could this even be the beginning of a new wave of liberalism at the court?
No surprise to some
To answer these questions, we should pause to ask a different one. Were either of these decisions unexpected? Were they surprising? To some they were, but not to those who are well-versed in the ways of the court. The FantasySCOTUS prediction market, for example, nailed both results exactly. (SCOTUS is the acronym for Supreme Court of the United States.)
For those unfamiliar with FantasySCOTUS, it is a type of “wisdom of the crowd” fantasy league, sponsored by Thomson Reuters and populated by lawyers, law students and others, all of whom compete for cash prizes (up to US$10,000) by forecasting Supreme Court decisions.
As such, it is like a fantasy sports league for those who follow the Supreme Court as closely as others might follow the New England Patriots or the New York Yankees. Or perhaps more closely, like the Hollywood Stock Exchange, where followers trade contracts on the success of the next movie or the next Oscar winner.
The “crowd prediction” for the gay marriage (Obergefell v Hodges) case was a 5-4 decision in favor of constitutionally guaranteed same-sex marriage rights. The prediction for the ACA (Burwell v King) case was a decision of 6-3 in favor of the continued funding arrangements for Obamacare. In both cases, FantasySCOTUS was spot on.
So these rulings came as no surprise to the prediction market. What about legal scholars? The Wall Street Journal Law Blog asked four experts to forecast the outcome.
Two of them predicted a 5-4 or 6-3 majority in favor of constitutionally guaranteed rights, one called it correctly as 5-4, with one dissenter.
The reigning champion
But more pertinently, perhaps, Jacob Berlove, the FantasySCOTUS reigning champion, as well as the other two leaders in the league, called it 5-4 in the correct direction.
That Berlove got it right is not altogether surprising. He was already famous enough in 2012 to be labeled “the best Supreme Court predictor in the world,” having won the league three times in a row.
So how easy is it to guess the opinions of the Supreme Court justices? Not really that difficult, according to my reading of the evidence, especially on touchstone cases like Bush v Gore (2000), Citizens United v FEC (2009), National Federation of Independent Business v Sebelius (2012), Obergefell v Hodges (2015) and Burwell v King (2015).
Take the 2012 case, in which the court was asked to decide whether President Barack Obama’s signature Affordable Care Act was in fact constitutional. Forecasts of the outcome diverged wildly.
In any event, the ACA was saved by the deciding vote of Chief Justice John Roberts, who ruled that while the individual mandate on citizens to buy insurance or face a penalty was not constitutional under the powers of Congress to regulate commerce, it was constitutional under its powers to tax. And so, by 5-4, the individual mandate that funded the ACA was upheld.
Was this predictable? Yes, if we adopt an approach to forecasting these closed-door decisions based on the very simple idea that Supreme Court justices vote in accord with their personal preferences, as I have argued elsewhere. In some cases, these are as simple as siding with what they want the law to be, regardless of what they actually believe it to be. This easily explains the Bush v Gore decision in 2000, which overturned the Florida Supreme Court and authorized the termination of the recount, handing the election to George W Bush by 5-4 (five Bush supporters, four Gore supporters).
In that case, one of the conservative justices (Justice Antonin Scalia) had to perform legal gymnastics to square that with every vote he had previously cast, notably on states’ rights.
Some, like Roberts – who wasn’t around for that ruling – have more nuanced preferences, in his case a desire to see enacted the outcome he prefers but with a strong belief in the authority of Congress to decide legislation as it sees fit. In both ACA cases, the chief justice was acting in accord with his cherished personal attitude toward the role of Congress.
Only Justice Anthony Kennedy was in any way a close call, his personal opposition to Obamacare conflicting with his deeply held aversion to an outcome that would in effect coerce states into setting up their own marketplaces if they wanted their citizens to have insurance. So this case could have gone 5-4 or 6-3, but either way it was a pretty safe bet to be decided in the direction it did.
Inevitable and predictable
The Supreme Court decision on same-sex marriage was much easier to predict. Five of the justices were personally in favor of same-sex marriage equality, while four were personally opposed. So the ruling was as inevitable as it was predictable.
In a court that is currently weighted 5-4 to the conservative side of the argument, however, victories are to be savored by liberals, but certainly not to be expected. Any new wave of liberalism at the Supreme Court would first require a new wave of justices, and for the moment, at least, that does not look likely to be happening any time soon.