The United States government represented by the Solicitor General is the most frequent party before the U.S. Supreme Court. These regular appearances will be quite pronounced over the next two weeks. The Supreme Court hears oral arguments in ten more cases before the end of the Term, and a representative from the Office of the Solicitor General will participate in each of the ten oral arguments. Of these cases, United States v. Texas is one of the most anticipated and may very well turn out to be a landmark decision in the Court’s immigration jurisprudence. In this post I look at several key recent Supreme Court decisions that examined measures taken by the Obama Administration and look at how the decisions in these cases might aid in thinking through the post-oral argument decision-making in United States v. Texas (the oral argument transcript can be found here).
I use four cases for comparative purposes in this post: Zivotofsky v. Kerry (2014), National Labor Relations Board v. Canning (2014), Arizona v. United States (2011), and National Federation of Independent Business v. Sebelius (2011). These cases along with United States v. Texas all examine the extent of executive power when a claim is raised that an executive action infringes on another branch of the federal governments’ or a state governments’ sovereignty (both a state’s government and a branch of Congress argued against the executive branch in United States v. Texas). In United States v. Texas, U.S. Solicitor General Verrilli and intervenor Thomas Saenz argued for the petitioners while Texas’ Solicitor General Scott Keller argued for the respondents along with Erin Murphy representing members of the United States House of Representatives (as an aside the only non-governmental attorney that argued in more than one of the four previous cases was Paul Clement who is also one of the attorneys most engaged in Supreme Court cases this Term).
One very real difference in the Court’s composition from the prior cases is the absence of Justice Scalia (I discussed his absence in oral arguments in a previous post that I subsequently updated with additional data ) who was one of the three Justices to vote against the Executive Branch in all four of the previous cases (Justices Thomas and Alito are the other two) as can be seen in the table below.
Aside from Canning the previous cases all came down to 5-4 vote splits. The very real threat of ideological differences among the Justices in this case (United States v. Texas) may similarly lead to a close vote and potentially to an evenly divided Court, although given the importance of this case the Justices may work hard to avoid this outcome (commentary on the Zubik case, another crucial decision this Term, examines how the Court has attempted to circumvent a tie vote in that instance).
With oral arguments complete in U.S. v. Texas, we can compare these arguments with the arguments in the four previous cases. Since we know the Justices voting decisions in these cases, this comparison may shed some light on the Justices possible votes in this case. Below are tables that provide the raw counts of the Justices’ and attorneys’ sentence, word, statement, and question counts, and the ratio of their statements to questions and vice-versa in terms of their total speech in all four of the previous cases.
Arizona v. United States (Petitioner)
Arizona v. United States (Respondent)
The relative amount and type of a Justices’ speech towards a side in a case can be used as an indicator of how the Justice might vote (I discussed this previously in reference to the Whole Woman’s Health case). The traditional way of interpreting vote correlations with oral argument speech is that those Justices that speak most to a given party’s representative are most likely to vote against that party.
How did this play out in the prior cases and how can we interpret the tables above? Three of the four cases were resolved in vote splits. Beginning with Arizona v. United States, Justices Sotomayor and Breyer spoke the most during Arizona’s turn and both voted against Arizona. Justices Roberts and Scalia spoke the most during the United States’ turn and both voted against the United States. The Sebelius case was very complex due to its national significance and the multiple issues raised, which complicates any interpretation of the connotations from the Justices speech patterns. Nonetheless Justices Sotomayor and Breyer spoke the most during the petitioner’s turn and voted against this party. By contrast, Justices Roberts and Scalia spoke the most during the government’s turn and Justice Roberts wrote the majority opinion upholding the government’s position while Justice Scalia voted against the government. Finally in Zivotofsky, Justices Kagan and Sotomayor spoke the most during the petitioner’s turn and voted against this party, while Justices Roberts and Scalia spoke the most during the government’s turn and voted against the government.
Now to United States v. Texas. Here are plots of the oral arguments in the case. They show the order of speaking from each individual at oral arguments as well as the length of each speaker’s turn.
The tables below provide the data supporting the figures with the counts of each actor’s speech, similar to the tables for the previous cases above.
These two tables can also be combined to give the total speech counts for all actors during the Texas oral arguments:
If the Justices hold true to past form in United States v. Texas we might expect an ideological split with Justices Roberts, Alito, Thomas (who though he didn’t speak in the other cases voted with the conservative bloc), and possibly Kennedy on one side and Justice Breyer, Kagan, Sotomayor, and Ginsburg on the other. This expectation is indeed highlighted by the more-liberal Justices large amount of speech during the respondent’s arguments and Justice Roberts’ and Alito’s high level of speech during the petitioner’s arguments. Also apparent are Justice Alito, Kennedy, Roberts’ low amounts of speech during respondent’s arguments and Justices Kagan and Ginsburg’s low amount of speech during petitioner’s arguments.
Justice Kennedy did not foreshadow his position in this case well with the amount of his speech since he was on the low end during both the petitioner’s and the respondent’s turns. Still, he spoke appreciably more during the petitioner’s argument, which provides some insight into his possible vote in this case.
While Justice Robert’s relative amount of questioning leaves the impression that he will likely vote against the United States, his past positions in cases like Sebelius combined with the possibility that he does not want the Supreme Court to reach stalemates in important cases may push him to vote with the Court’s liberals. Conversely, the fact that an evenly divided Court leaves the conservative Texas lower court ruling in place might persuade Justice Roberts to vote alongside the other conservatives on the Court if he is ideologically minded in this case. A third possibility is for Justice Roberts to vote along with the liberals but on the ground that Texas does not have standing in the case, and thus support the United States’ position without substantively saying that the Obama Administration’s actions accorded with constitutional dictates.
Finally to leverage the data from the opinions in the four previous cases I clustered the majority and separate opinions in two categories based on whether they supported the executive’s position or were against it. I then looked at three word phrases in these two categories of documents to see how the Justices differentially expressed their views with their opinions. With some basic statistical aggregation taking into account word frequencies and relative frequencies within the various opinions I calculated the top 20 most salient three word phrases from both sets of cases.
Based on these tables the opinions that supported the executives positions focused much more on executive power compared with those that supported positions opposing the executive’s positions which focused much more on Congressional power and on original intent (although at least a portion of this we owe to Justice Scalia).
Here are the Justices’ most frequent one word phrases from the Texas oral arguments.
It is hard to glean insight from these word frequencies but they do provide a sense of the issues of focus for the Justices (the acronym DHS is for Department of Homeland Security and DAPA is for Deferred Action for Parents of Americans).
Looking at the oral arguments in United States v. Texas, the early reports of an ideological divide among the Justices in the case are underscored by empirical data from the case. The two votes that seem as though they are still potentially floating are those of Justices Roberts and Kennedy. Although the bulk of available information appears to portend that they will vote along with Justices Alito and Thomas, previous cases and their behavior in these oral arguments leave open the possibility that either could shift to the left and vote alongside Justices Breyer, Kagan, Ginsburg, and Sotomayor in support of the United States.
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