Daily BulletinHoliday Centre

The Conversation

  • Written by The Conversation
image"No duh" was the reaction of some to the Supreme Court's same-sex ruling.Reuters

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 contacts 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, these 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.

Leighton Vaughan Williams does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

Authors: The Conversation

Read more http://theconversation.com/same-sex-ruling-was-no-surprise-to-supreme-court-gamblers-and-shouldnt-be-to-you-either-43979

INTERWEBS DIGITAL AGENCY

The Conversation

Politics

Closing the Gap Statement to Parliament

Mr Speaker, when we meet in this place, we are on Ngunnawal country. I give my thanks and pay my respects to our Ngunnawal elders, past, present and importantly emerging for our future. I honour...

Scott Morrison - avatar Scott Morrison

Prime Minister Interview with Alan Jones

ALAN JONES: Prime Minister, good morning.    PRIME MINISTER: Good morning, Alan.    JONES: I was just thinking last night when we're going to talk to you today, you must feel as though you've ...

News Company - avatar News Company

Prime Minister Bridget McKenzie press conference

PRIME MINISTER: Good afternoon everybody. The good news is that the Qantas flight is on its way to Wuhan and I want to thank everybody for their cooperation, particularly the Chinese Government as...

Scott Morrison - avatar Scott Morrison

Business News

Choosing the Right Coworking Space For Your Business

As the capital of Victoria in Australia, Melbourne is inhabited by millions of people and is known as one of the most liveable cities in the world. The latter is due to the city’s diverse community...

Sarah Williams - avatar Sarah Williams

What Should You Expect from A Carpentry Apprenticeship?

Those wanting to pursue a career in woodwork, whether it be to make furniture, construct buildings or repair existing wooden structures, will have to first commence a carpentry apprenticeship. This ...

News Company - avatar News Company

4 Tips To Choosing A Reliable SEO Company For Your Digital Marketing Agency

Working with a digital marketing agency Perth is the best bet in ensuring that your business is promoted well in the online space. If you are an app developer Perth, you may have to work closely wit...

News Company - avatar News Company

Travel

Travelling With Pets? Here Is What You Should Know

Only a pet parent can understand the dilemma one experiences while planning a vacation. Do you leave your pets at home?  Will you get a pet sitter or someone to take care of them while you are away?...

News Company - avatar News Company

How to Be a Smart Frugal Traveller

You are looking through Instagram, watching story after story of your followers overseas at a beach in Santorini, walking through the piazza in Italy, and eating a baguette in front of the Eiffel ...

News Company - avatar News Company

HOW TO PREPARE FOR YOUR GRADUATION TRIP

Graduation is the stage of life when a student receives the rewards of hard work of years. It must have taken sleepless nights and tiring days to achieve the task. Now, as you have received your cov...

News Company - avatar News Company

ShowPo