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Final FantasySCOTUS.net Predictions for Health Care Cases #SCOTUS

In approximately twelve hours, the Supreme Court will decide the consolidated Health Care Cases. Here are our final predictions.

The mandate is going to be struck down, and it will be severed.

The threshold question is whether the suit is permitted by the Anti-Injunction Act? The 11th Circuit held that suit was not barred by the AIA.

  • 94.28% predict that the suit can proceed, notwithstanding the AIA.
  • 5.72% predict that the suit will be barred by the AIA
Since oral argument, the numbers have increased somewhat as to whether the AIA will serve as a jurisdictional bar.
The most critical question is whether the individual mandate exceeds Congress’ powers, and is unconstitutional. The 11th Circuit held that the mandate exceeded Congress’s powers and is unconstitutional.

  • 57.14% predict that the Court will find the mandate unconstitutional.
  • 42.86% predict that the Court will uphold the mandate.
  • Of particular interest, 58.1% of members predict that Justice Kennedy will vote to strike down the mandate. Chief Justice Roberts, as well as Justices Scalia, Thomas, and Alito are all predicted to strike down the mandate at 72.1%, 82.9%, 89.0%, and 83.4% respectively.
Following oral argument, the percentage of voters who think the mandate will be struck down as jumped from about 51% to 57%. There has been a lot of movement in the last week or so.
Assuming the mandate is unconstitutional, the Court will next consider whether the mandate is severable from the remainder of the Patient Protection and Affordable Care Act of 2010. The 11th Circuit held that the mandate was severable.

  • 68.67% predict that the Court will sever the mandate from PPACA.
  • 31.33% predict that the Court will find that the mandate is not severable.
  • Of note, 67.5% of members predict that Justice Kennedy will vote to find the mandate severable.
The severability numbers have dropped, while the mandate unconstitutional numbers has increased. This tells me that people think that the entire ACA is going down.
The final question is whether the expansion of Medicaid is constitutional. The 11th Circuit found that the expansion was in fact constitutional.

  • 74.38% predict that the Court will uphold the Medicaid expansion.
  • 25.62% predict that the Court will find the Medicaid expansion unconstitutional.

This is really the sleeper issue. The numbers dropped right after argument, but have leveled off.

A Note From Our Friends at ConSource To The Winners of the ConSource Badge

Dear ConSource Badge Winners,

Thank you for participating in the FantasySCOTUS program and congratulations on earning the ConSource badge. The blog posts you submitted display a great amount of effort and creativity.  It is clear that you put active thought into the meaning of the First Amendment as it pertains to student speech both inside and outside of school.  What was particularly impressive was your use of examples from your own school policies, as well as facts drawn from J.S. v. Blue Mountain School District and Layshock v. Hermitage School District.

As students, you should always strive to improve your writing. One way to construct a more compelling legal argument is to cite additional source materials outside of the case law itself. For example, a number of you reference the idea that citizens of the United States should have the freedom to voice their own opinions, no matter the content. To explore the extent to which this broad statement is true, you may want to look to the history of the First Amendment. Start with a direction citation to the First Amendment’s broad and absolute terms.

From there, you can seek out the meaning of those words by looking at the ideas the Framers discussed and debated before they settled on the language “Congress shall makes no law […] abridging the freedom of speech.” For instance, the Framers often referred collectively to “the rights of Conscience,” which were closely intertwined with both the freedom of religion and the freedom of speech. Take a look at the Senate’s debates on the Bill of Rights amendments, in letters exchanged between the Amendment’s Framers, and in the state ratification records to determine if the freedom of conscience is broader or different than the freedom of speech. Consider why the Framers might have decided not to use the language “freedom of conscious.” Would swapping the word “speech” for “conscience” impact the rights of students to express themselves inside and outside of school?

With these questions in mind, and the tools available to answer them on the ConSource website and elsewhere, you will be able to further develop your already excellent legal arguments. If you would like to continue working on your legal analysis of student speech, please feel free to email me at Julie.Silverbrook@consource.org. I am always delighted to work with students to help you develop your legal and historical reading and writing skills.

Keep up the good work!

Julie Silverbrook

Executive Director

The Constitutional Sources Project

Harlan Institute’s Work On Big Data Featured in ABA Journal

The ABA Journal featured a post on Big Data and the Law, and featured the work of the Harlan Institute:

Databases of historical legal information are being built that could help lawyers calculate the odds of winning a case and how to craft the arguments.

• The nonprofit Harlan Institute, which promotes interest in the Supreme Court, is also investigating quantitative legal prediction. It’s an outgrowth of a Supreme Court fantasy league launched by lawyer Josh Blackman. He suggests in a law review article that it could be “quite conceivable for a bot to crawl through all of the filings in Pacer … and develop a comprehensive database of all aspects of how each court works.”

Congratulations to the Winners of FantasySCOTUS.org October Term 2011

Congratulations to the winners of the second season of FantasySCOTUS.org.

The grand prize winner is Ms. Dayna Laur’s AP Government Class at Central York High School in York, Pennsylvania. Ms. Laur’s class scored a record 25,300 points from earning over 125 badges. The quality of their work is simply astonishing, and each student in the class should be commended. Ms. Laur’s class will receive an iPad as a prize.

The second-place team is Ms. Erin Olson’s AP English class at Sioux Central High School in Sioux Central, Iowa. Ms. Olson, whose class was featured on the front page of the New York Times for her ingenuous use of technology in the classroom. Ms. Olson’s students wrote a number of important blog posts, and earned several badges for our special Bill of Rights Institute and ConSource contests. Ms. Olson’s class will receive a $100 Amazon.com Gift Card as a Prize.

The third-place team is Ms. Wendy Wolfe’s Constitutional and Criminal Law class at Totino-Grace High School in Fridley, Minnesota. In Ms. Wolfe’s first season participating in FantasySCOTUS, her team narrowly missed second place. Ms. Wolfe’s class will receive a $50 Amazon.com Gift Card as a Prize.

We also had several runner-ups who will each receive a $25 Amazon.com Gift Card:

Congratulations to all of the teachers and students who participated in FantasySCOTUS this year. We hope you all return next year.

Congratulations to the Winners of the Bill of Rights Institute Badge on FantasySCOTUS.org

This year, the Harlan Institute partnered with our friends at the Bill of Rights Institute to offer a BRI Badge. For this badge, students considered whether the Fourth Amendment places any limitations on a school’s power to search students (including their backpacks and cell phones).

Check out some of the best posts written by students that received the badge:

One student remarked on the reasonable suspicion standard necessary to search students in schools:

The question being asked involves having reasonable suspicion that a student is communicating with someone else (whether it be with another student or not) about selling drugs. A school should still not have the right under the Fourth Amendment of the United States Constitution to search that particular student’s phone. This Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If a school authority is truly and reasonably suspicious that a student is using their cell phone or other electronic device during school hours to communicate with another person about selling drugs, said school authority should contact a higher authority (i.e., the police) and obtain a proper warrant to seize and search the student’s device. The Fourth Amendment protects such searches and seizures from happening without “probable cause, supported by oath or affirmation”, and that right should not be violated.

Another student drew a conceptual distinction between searching a backpack, and searching a cell phone:

Searching a person’s phone and searching a person’s backpack are two totally different things. A backpack is used for school supplies and things you would need during a school day. A phone is a personal connection to other people that doesn’t have anything to do with school. A phone allows us to communicate about and with out of school people and things. What is on phones is personal.

Another student focused on the Supreme Court’s holding in Safford United School District # 1 v. Redding, which concerned a strip search of a student who had was suspected of having ibuprofen:

In the Safford Unified School District #1 v. Redding I think they went way over board on a girl having ibuprofen on her in school grounds.  They didn’t need to go that far when ibuprofen is legal to have and the girl was only 13 years old. They did not need to strip search her for an ibuprofen tablet. I don’t necessarily think that random drug test follow the fourth amendment they don’t have probable cause to search people or test them for drugs.  I don’t necessarily think its a bad idea but I can see where people would want to deny the test because of their rights.  They shouldn’t have to get tested unless the person testing has a cause to do so. Student athletes should be tested for drugs in case they are using them in a way that could better their skills while playing that sport.  They should be notified that if they are going to play the sport they are probably going to get tested and that if they don’t want to be tested they shouldn’t try out for the sport.  So I think that the fourth amendment does allow schools to look at your phone under certain circumstances.  There is also a fine line as to what circumstances are just and which ones aren’t.

A student drew a distinction between searching students who participate in extra-curricular activities (in the form of drug testing) and those who do not engage in such activities:

If a school wants to drug test students who want to participate in extra curricular activities, they can have students take them. Because the extra curricular activities are extra and not a have to do like attending school.  When a student chooses to be in activities beyond just school, they have to follow a good conduct code. Students represent a school and how the system works. When there are drug tests in the student athletes, that prevents those students from taking drugs because they do not want to lose their spot on the varsity line up. A majority of students are apart of one extra curricular activity or another. The Fourth Amendment protects students from a random search. But if say, a drug dog comes onto campus, and detects drugs, that is probable cause to be searched.

Congratulations to all of the students who participated.


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