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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.

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 11,000+ members of FantasySCOTUS.net will vote on this soon-to-be landmark case. At this early stage–three 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. 87.18% predict that the suit can proceed, notwithstanding the AIA. 12.82% 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. 52.94% predict that the Court will find the mandate unconstitutional. 47.06% predict that the Court will uphold the mandate. Of particular interest, 54.9% 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 73.2%, 75.6%, 82.7%, and 76.8% 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. 76.81% predict that the Court will sever the mandate from PPACA. 23.19% 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. 71.64% predict that the Court will uphold the Medicaid expansion. 28.36% 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 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.

Does post-facto live-blogging defeat the purpose? Perhaps, but as the Supreme Court doesn’t allow electronics, I had to take notes on today’s oral arguments the old fashioned way. Check out this FantasyCast for background on the case, then read on for the play-by-play and a summary by each of the Harlan Fellows. 9:09am – Just saw the Zivotofsky family in the coatroom — That counts as a SCOTUS celebrity sighting, right? 9:15am – We take our seats as the clerks drop off piles of papers and mugs of coffee at each Justice’s seat. 10:00am – On the dot! Showtime: Buzzing noise, Justices file in, gavel bangs, “Oyez, oyez, oyez!” 10:03am – Counsel for the Petitioner, Nathan Lewin, steps up and begins arguing that Congress has the power to make such passport decisions as they did in this case; saying Congress and the President share foreign policy decision-making power. 10:07am – Justice Ginsburg asks:”[In this case,] why does Congress trump the Executive?” Lewin answers: because this case is about a passport, not a foreign policy decision. 10:11am – Petitioner argues that Congress passed the law using their power to regulate immigration and international commerce. 10:14am – Justice Scalia wonders why this is any of the Court’s business and says he doesn’t want to interfere with “inter-branch hand-wrestling.” Lewin argues that the Court has the power to “scrutinize” a President’s foreign policy rationale. Justice Scalia provokes some courtroom chuckling: “Congress has many clubs with which to beat the Executive.” 10:20am – Justice Kagan lays down the law: As she sees it, this passport statute had nothing to do with Congress’ power to regulate immigration and was instead a foreign policy decision. Tells Lewin, “Prove to me that I’m wrong,” to which he quips, “Well, you’re wrong!” 10:21am – Lewin claims the statute, in requiring the State Department to, upon request, list Jerusalem as part of Israel, was not intended to create a “political brouhaha.” Hushed murmurs and raised eyebrows around the courtroom. 10:23am – Lewin notes that the statute “does say that the individual passport holder can choose to say Israel or can keep it as Jerusalem, and if he’s born before 1948 he can say Palestine,” to which Justice Kagan responded: “you’d have to be very old to say Palestine.” 78 year old Justice Ginsburg quickly responded “not all that old” which brought proceedings to a brief halt as the entire courtroom–including the bench–doubled over in laughter. 10:28am – Ginsburg brings up the political question issue; Petitioner denies the doctrine’s relevance and reserves the rest of his time for rebuttal. Now it’s Solicitor General, Donald B. Verrilli, Jr.’s turn to argue for the Respondent. 10:30am – Verrilli challenges the Petitioner’s basic argument that Congress and the President have co-equal foreign affairs power; argues that the Constitution gives exclusive power to the Executive. 10:37am – Chief Justice Roberts and Justice Ginsburg redirect the questioning to the political question doctrine, even though the Respondent focuses mainly on the merits — the separation of powers issue. 10:41am – Justice Kennedy: “It’s always awkward for us to tell Counsel what’s in their best interest…”; he wonders why Verrilli isn’t arguing that the case is non-justiciable, as the D.C. Circuit Court’s opinion held. 10:44am – Roberts asks a hypothetical: Would Congress be infringing on the President’s power if they required a passport to say “Jerusalem, Israel (disputed)”? Respondent says yes, to Roberts’ surprise (as this declaration would be consistent with State Dept. policy). 10:45am – Scalia pushes back a bit: The President is the “sole instrument” of foreign policy, but doesn’t Congress have some power too? 10:54am – Justice Breyer asks for a word on the political question issue, which the Respondent has steered away from. Justice Sotomayor joins in, pointing out that whether they label this issue a “political question” is important. 10:58am – Roberts gives the Respondent a few more minutes to field questions on the political question topic. Justice Sotomayor asks the SG: if twelve nations all announced that they would declare war against the United States if the President recognized the sovereignty of another nation, would Congress be powerless to act? The SG responded that, under those circumstances, he did not believe that the President would recognize a foreign nation. Quick as always with a retort, Justice Scalia asked him to imagine “We have a foolish President” and added sarcastically “… contrary to our entire history.” 11:00am – Lewin returns for a 6 minute rebuttal, emphasizes that a passport is merely a form of personal identification, not a “diplomatic communication” as the Respondent argued. 11:05am – Justices Thomas, Breyer, and Kennedy get fidgety in their high-backed reclining chairs as Sotomayor asks a final hypothetical. 11:07am – End of arguments, while another case is up after MBZ, there’s a “mass exodus” out of the courtroom. (Credit to the AU Law Professor sitting next to me for that pun.) Allie’s thoughts: Lewin did an excellent job making a tough case for the Petitioner. Ultimately though, it seems like a majority of the Supremes were not on board with his argument that Congress and the President have equal foreign affairs power under the Constitution and that the “passport statute” was not a foreign policy declaration. What will be interesting is how the Court will deal with the political question issue, one that the SG continually move away from. There is some sense that because this action involved an express conflict between branches, rather than a premature request for the Court to decide the issue, the case will be decided on its merits. Charlie’s thoughts: The Justices pressed the Solicitor General hard to find a limit to his argument (is the President truly the sole organ of American foreign policy?) and seemed surprised at some of his responses. However, to the extent that the Court’s opinion can be gleaned from oral arguments, it looked this morning like at least a majority of the Justices agreed with the Government that § 214(d) unconstitutionally infringes upon the President’s ability to shape American foreign policy. Justice Kennedy seemed to announce the Court’s mood early when he referred to the petitioner’s argument as a “crabbed” interpretation of the President’s foreign policy power. The Court has posted the transcript for today’s argument here.