Trump & NIFLA: The First Amendment and the Crowd’s One-Two Punch

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Opinion

by Ryan Adler

Ryan Adler is a Superforecaster and Senior Consultant for Good Judgment who specializes in legal analysis for Good Judgment’s question writing team. He also administers the SCOTUS Challenge on Good Judgment Open, a collaboration between SCOTUSblog and Good Judgment that facilitates probabilistic thinking about court decisions. Ryan can be reached at adler@goodjudgment.com.

Eager SCOTUS Challenge forecasters got closings on two out of three remaining questions this morning, which Meatloaf taught us ain’t bad.  First up was Thomas’ opinion in NIFLA v. Becerra, which held that state law requiring crisis pregnancy centers to post notices about state-sponsored abortion programs.  In the 5-4 ruling, the Court breathed new life into petitioners’ efforts to see the State of California enjoined (i.e. prevented) from enforcing these requirements on the grounds that such requirements likely violate the Free Speech Clause of the First Amendment.  The “likely” here is key, since this was an appeal over the denial of a preliminary injunction and not a ruling on the merits themselves.  So how about the crowd?

Becerra

While forecasters on this question initially settled between 80% and 95% after oral arguments (the unique marker reflects the date of oral arguments), they slowly drifted down while waiting for a ruling.  However, even with this collective hedging, the crowd was at 62% to the good.

And then there was Trump v. Hawaii, easily the biggest headline case of this term.  Again 5-4, with the Chief Justice taking the reins, Justices handed the Trump Administration a resounding victory over opponents who sought to blunt his use of executive authority under the Immigration and Nationality Act to limit entry of aliens from five Muslim-majority countries.  (The proclamation in question covered eight countries, but its application to North Korea and Venezuela was not part of the challenge, and the Administration had already lifted restrictions on Chad.)  In what CNN rightly called a blistering dissent from Sotomayor, she invoked the legacy of Korematsu v. United States, the infamous 1944 case regarding the internment of persons of Japanese descent.  How history will view this ruling in the years to come remains to be seen, but as for the disposition of this case, the crowd saw it coming.

First off, this case was unique among our 13 case questions this term because it was the only question with more than two answer options.  We found this necessary due to the varied grounds on which this case was argued.  Additionally, we took a bit of a gamble by focusing on whether or not the Court would reach the question of constitutionality and the Establishment Clause, since the Ninth Circuit stopped at statutory bases for enjoining enforcement.   Thankfully, that bet paid off.

Trump

I apologize for the busy chart, but it illustrates two points well.  First, the shift that the crowd took after oral arguments (again demarcated with unique markers) is noteworthy.  There was a clear shift in sentiment.  As for the second, the crowd was incredibly confident that Trump would not lose if the Court reached the Establishment Clause.  This Superforecaster wouldn’t have been quite as bold as they, but it’s a logical premise.  With this one at a stronger 75%, our self-assured group scored two solid wins.

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