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 firstname.lastname@example.org.
Whether you love him, hate him, or fall somewhere in between, I doubt that a soul would deny that President Trump has kept things interesting over the past many months. The Twitter dynamic alone has made the happenings in and around the executive branch more unpredictable than the collective American memory can recall. If political prognostication weren’t difficult enough already, this administration makes a lot of DC heads hurt as though each had just chugged a Slurpee. However, for forecasters, this provides a perfect contrast to illustrate some of the unique difficulties with forecasting appellate court cases.
Enter Trump v. Hawaii, the challenge currently before the Supreme Court over the legality of Trump’s executive actions regarding immigration from a specific list of countries. While there has been no shortage of coverage of the case and its varied legal, political, and social ramifications, the reality is that forecasters aren’t working with much over the life of this case before the high court.
Consider the information and events available to the public between certiorari (cert) being granted and the decision getting handed down. First off, granted, we all had a bit more insight with Trump v. Hawaii, both due to the extent of the prior litigation and treatment of lower court injunctions. However, that all preceded the granting of cert and was thus baked in before the matter was a Supreme Court case. With that understood, the Court’s framing of the questions presented in the order granting cert was the first glimpse of what at least some of the justices were thinking. Beyond the Court’s inclusion of the question of whether the President’s proclamation violates the Establishment Clause, that glimpse illustrated little more than the fact that the Court would hear the case.
So what about briefs? There is no shortage of additional reading material related to this case. According to the Trump v. Hawaii page on SCOTUSblog, more than six dozen amicus briefs were filed with the Court. In the 2016 Term, the average per argued case was ten. But so what? While anybody interested in the outcome of this case could find heaps of supporting material in all of these briefs, we have no idea how well received any of these arguments are by the nine folks who count. I suppose we could start a Facebook page, get each Justice signed up, and ask them all to “like” briefs as they are filed, but I wouldn’t put any money on active participation.
We are then left with the only event in the life of the SCOTUS case that offers us any peeks into their heads: oral arguments. For Trump v. Hawaii, that amounted to a hair under 67 minutes in the morning of April 25th. For most cases, that’s plenty of time to get some insight. But when you’ve got a suit that could turn on justiciability, statutory interpretation, and questions of constitutionality, an hour of back and forth between lawyers could only get you so far.
So what does this mean to a forecaster? A question about the Supreme Court is far more developed and mature from its inception than most any other. A vast majority of the information that could instruct a forecast is public and a matter of record as soon as it lands on the High Court’s docket. The same cannot be said about questions regarding the Trump Administration. The White House is a frenetically-paced predictive information mill. The Supreme Court is not, and recognizing that fact is key for any forecaster wanting to dip a toe into the SCOTUS Challenge.
If only Justice Kennedy would start tweeting.