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The Harlan Institute would like to congratulate several members of our team who are graduating! Corey Carpenter, Laura Lieberman, and Cara Tucker are graduating from the George Mason University School of Law. [caption id="attachment_439" align="aligncenter" width="362" caption="Corey reading the Constitution at Shake Shack"][/caption] [caption id="attachment_440" align="aligncenter" width="432" caption="Cara and Laura representing Team Harlan"][/caption] Yoni Roth is graduating from the University of Toronto Law School [caption id="attachment_450" align="aligncenter" width="300" caption="Yoni"][/caption] Sam Reitman is graduating from the Georgetown University Law Center [caption id="attachment_449" align="aligncenter" width="300" caption="Sam"][/caption] Matt Allen is graduating from Clemson University. Zak Slayback is graduating from Somerset High School (the winner of the inaugural season of FantasySCOTUS.org).  [caption id="attachment_443" align="aligncenter" width="430" caption="Zak and Justice Thomas"][/caption] Zak will be going to UPenn State in the Fall. Good luck in Philly!  

From the NPR Health Blog, an article about predicting the outcome of the Health Care Case. Harlan's Corey Carpenter is quoted:

On the FantasySCOTUS Web site, 54 percent of an audience composed largely of law students and clerks predicted the mandate will be thrown out. . . . At FantasySCOTUS no money changes hands. Winners get "bragging rights," said Corey Carpenter, director of analysis for the Harlan Institute, an educational nonprofit affiliated with the site. Predictions on FantasySCOTUS of the mandate's demise saw little increase following the arguments, perhaps because the site's audience pays more attention to legal logic than media coverage, Carpenter said.

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Liz Goodwin writes for Yahoo News about how FantasySCOTUS.net “might be the most accurate bet” to predict the outcome of the health care cases:

That’s why true legal nerds have a prediction market all their own, called FantasySCOTUS, where players earn points and bragging rights, not money, when they correctly forecast the Supreme Court’s decisions. It’s a Fantasy League for the legal set. In 2009, the most active FantasySCOTUS players predicted 75 percent of that year’s 81 cases correctly, according to a paper written by the site’s founders. (The Harlan Institute, a non-profit that aims to educate high school students about the Constitution, created FantasySCOTUS in 2009.) The site’s founders say that FantasySCOTUS is more reliable for predicting Supreme Court rulings than Intrade because people who bet on Intrade tend to be political junkies, while those who place wagers on FantasySCOTUS are actual court-watchers, even though they don’t necessarily all have law degrees. Of the top-ranked players on FantasySCOTUS, 55 percent currently predict that the individual mandate will be upheld. But looking at all the players on the site together reveals a split of 52-48 with a slight majority calculating the mandate will fall. Unfortunately, we can’t rely on the site’s “chief justice,” the nickname for the top-ranked player, because he hasn’t yet wagered on the individual mandate. So why the split decisions between FantasySCOTUS and Intrade? Corey Carpenter, a third-year law student at George Mason University and an analyst for the Harlan Institute, tells Yahoo News that after oral arguments started, and pundits began warning that the justices seemed unconvinced by the government’s argument, the odds that the Court would strike down the mandate shot up quickly on Intrade, from 47 to 61 percent. Perhaps the betting public had just watched New Yorker writer Jeffrey Toobin emerge from the courthouse and tell CNN that the arguments had been a “train wreck” for the Obama administration. But these statements and fluctuations of opinions probably had less influence on FantasySCOTUS players, since many participants read the briefs and make their own decisions, instead of relying on media reports. Before oral arguments, FantasySCOTUS players were split 50-50 on whether the mandate would fall. After the third day, the odds rose slightly for a rejection of the mandate, to 52 percent. “We have a core of dedicated users that take it very seriously,” Carpenter said. About 220 users voted on the individual mandate out of the roughly 12,000 players on the site. Ten years ago, people eager to learn the outcome of court cases didn’t have to rely on the futures markets to predict Supreme Court cases. They had another tool: a computer program that used decision trees and information about the justices’ voting records to forecast rulings. In 2002, this program, called the Supreme Court Forecasting Project, predicted 75 percent of cases correctly, while a panel of Supreme Court experts accurately predicted less than 60 percent, according to an article in the Columbia Law Review. However, the program stopped working so well when a slew of justices retired, since it relied on plugging in judges’ past decision into the program. For today, FantasySCOTUS just might be the most accurate bet.

This morning, Chief Justice John Roberts handed down the opinion for Zivotofsky v. Clinton (formerly M.B.Z. v. Clinton). You can check out the FantasyCast to jog your memory on the facts of the case. If you recall, Charlie and I attended the oral arguments back in November. After the arguments, I predicted that the Justices would decide the case on its merits, but they’ve proved me wrong. Instead of deciding the separation of powers issue — whether Congress interfered with the President’s foreign policy power by passing a law that requires the Secretary of State to list “Jerusalem” as a part of Israel on passports and birth certificates — the eight Justices in the majority held only that the issue is not a political question. This decision means that the separation of powers issue will be remanded and that a court can decide whether the statute was a constitutional exercise of Congress’ power. Justice Sotomayor concurred in the judgement. Although she agreed with the decision, Sotomayor believed the majority oversimplified the test for determining a political question. Justice Alito also concurred in the judgement. Justice Breyer was the lone dissenter. Breyer agrees with Sotomayor’s assessment that the political question test is more complicated than the majority purports. In his analysis, however, Breyer found that the case does present a political question because of its “minimal need for judicial intervention” and because of a “serious risk that intervention will bring about ‘embarrassment,’ show lack of ‘respect’ for the other branches, and potentially disrupt sound foreign policy decisionmaking.”

Michael Serota writes on the Huffington Post about the importance of civic education and teaching students about the law, and focuses on the Harlan Institute and one of partners, iCivics. Check it out!

In terms of making such curricular reforms a reality, it’s worth noting that programs such as Justice Sandra Day O’Connor’s iCivics program, which enables students to run their very own constitutional law firm through the online game Do I Have a Right?, and the Harlan Institute’sHarlan Connect, which allows high school classes to arrange webcam lessons on recent Supreme Court cases from lawyers and law professors, already provide civics teachers with ways of incorporating law into their curriculum. For more comprehensive reforms, policymakers should establish a Teach for America-like program geared specifically toward attracting law school graduates to careers in law-related education at the primary and secondary school level (to be sure, there is no shortage of unemployed law school graduates these days).

It’s the question we all want to know–what will the Supreme Court do with the Patient Protection and Affordable Care Act of 2010. We have crowdsourced a daily prediction tracker for the four consolidated cases. In real-time, the prediction tracker calculates how the 12,000+ members of FantasySCOTUS.net will vote on this soon-to-be landmark case. At this early stage–one months before oral arguments with a limited sample size–the members of FantasySCOTUS.net are predicting that the individual mandate will not survive the Supreme Court.

	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. 90.59% predict that the suit can proceed, notwithstanding the AIA. 9.41% predict that the suit will be bared by the AIA (this is the position adopted by Judge Kavanaugh on the D.C. Circuit)
	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. 51.72% predict that the Court will find the mandate unconstitutional. 48.28% predict that the Court will uphold the mandate. Of particular interest, 51.8% 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 71.6%, 75.9%, 85.8%, and 76.6% respectively.
	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. 73.49% predict that the Court will sever the mandate from PPACA. 26.51% predict that the Court will find that the mandate is not severable. Of note, 73.2% of members predict that Justice Kennedy will vote to find the mandate severable.
	The final question is whether the expansion of Medicaid is constitutional. The 11th Circuit found that the expansion was in fact constitutional. 77.17% predict that the Court will uphold the Medicaid expansion. 22.83% predict that the Court will find the Medicaid expansion unconstitutional.

These predictions are still rather preliminary. Most members do not offer predictions until after oral arguments–in this case nearly 6 hours of discussion. We will provide updates on this significant case throughout the course of the Term. To learn more about the FantasySCOTUS.net crowdsourced methodology, please see my recently published co-authored article in the Northwestern Journal of Technology and Intellectual Property. What do you think the Court will do? Sign up today and predict! You can win a $200 Amazon.com Gift Card by making predictions.

Want to teach your students about the landmark health care case that will be argued at the Supreme Court in March? Check out this lesson plan on FantasySCOTUS.org, or watch this video:

This morning, Chief Justice Roberts handed down an opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission on behalf of a unanimous Court. Overturning the Sixth Circuit’s holding for the EEOC, the Court found that the First Amendment Free Exercise clause protects the Church from an anti-discrimination lawsuit following the termination of a teacher diagnosed with narcolepsy. In this case, the Court settled a Circuit Split regarding a judicially-created loophole to the Americans with Disabilities Act called the “ministerial exception.” The exception, in short, protects religious institutions from being sued under the federal anti-discrimination statute based on the rationale that a religious institutions’ hiring and firing decisions fall within their Constitutional right to free exercise of religion. While courts agree that religious leaders are barred from suit, there was disagreement as to the scope of the ministerial exception. The Supreme Court held today that Perich, a teacher at a religious school who taught mostly secular subject matter, falls within the ministerial exception and therefore cannot sue her former employer, Hosanna-Tabor Church, under the ADA. In his opinion, Chief Justice Roberts provides a history lesson on the “[c]ontroversy between church and state over religious offices,” from the Magna Carta to the framing of the First Amendment Free Exercise clause. Within this framework, the Court affirmed the existence of the ministerial exception and held that the exception “is not limited to the head of a religious congregation.” The Court refused, however, to adopt a bright line test to determine who would fall within the exception and instead found that, based on the facts of the case, Perich constitutes an individual who the Church held out as a “minister.” On these grounds, the Sixth Circuit’s holding was reversed, barring Perich and the EEOC from going forward with their discrimination law suit against Hosanna-Tabor.

After a brief holiday lull, the Supreme Court resumes its argument schedule tomorrow, January 9th, to begin the unofficial second half of October Term 2011. The new year brings a number of intriguing and consequential cases for Court watchers. Tomorrow the Court will hear a trio of consolidated cases concerning Texas’s redistricting for the 2012 elections. At issue is the power of a three judge federal court in Texas to redraw a number of district maps as interim measures while Texas seeks the preclearence required by Section 5 of the Voting Rights Act. Because of looming primaries, the Supreme Court expedited briefing of these cases and scheduled them for argument barely a month after staying the district court’s order. The Court’s resolution of these cases–expected relatively quickly by the Court’s standards–could impact the 2012 elections. Over the course of three days in March, the Court will hear a number of issues relating to the Patient Protection and Affordable Care Act (more familiar by its sobriquet “Obamacare”). As one of the centerpieces of President Obama’s domestic agenda, the Court’s decisions will almost certainly become political fodder on the eve of the 2012 Presidential race. The Harlan Institute has begun to crowdsource FantasySCOTUS-ers’ predictions of each issue the Court has agreed to hear. Past uses of FantasySCOTUS as a sort of prediction market haveyielded correct predictions in over fifty percent of cases. Finally, the Court will hear Arizona v. United States this term, which considers the constitutionality of Arizona’s recent, controversial immigration law, S.B. 1070. As in the healthcare cases, the outcome of this case could play a role in many upcoming elections. In addition to these politically sensitive cases, the Court has agreed to hear a number of First Amendment cases over the remainder of OT2011. On Tuesday, January 10th, the Court will hear argument in FCC v. Fox, to determine the constitutionality of the FCC’s “fleeting expletives” policy. That same day, the Court will considerKnox v. SEIU, which tests the constitutionality of state laws conditioning employment on the payment of union assessments used for political purposes. Finally, in United States v. Alvarez, the Court will face the question of whether the First Amendment is consistent with the Stolen Valor Act, which makes it a crime to falsely represent receipt of military decorations or medals. The Court has now granted certiorari in over 70 cases this Term. If recent years provide any guidance, we can expect the pace of cert grants for this Term to slow significantly as the Court begins to issue opinions. However, even with fewer new cases on the horizon, the next few months will have more than their share of Court excitement.