Monday, March 25, 2013

SCOTUS SSM Bracketology

By Mike Dorf

If either team had an equal chance of winning each game in the NCAA basketball tournament, the odds  against filling out a perfect bracket would be one out of 2 to the 63rd power, or roughly speaking, a 9 followed by 18 zeroes. (I'm ignoring the play-in games.  If you count them, discount your odds by a further factor of 16).  What are the odds of filling out a perfect "bracket" for the Supreme Court's decisions in the same-sex marriage cases to be argued this week?  That depends on what we mean by a successful prediction, so let me make some simplifying assumptions.

There are nine justices and two cases--Perry (the Prop 8 case) and Windsor (the DOMA case).  In each case, there are arguably infinitely many possible outcomes, but we can group these outcomes into four basic possibilities: (1) No ruling on the merits because executive non-defense means no case or controversy; (2) Plaintiffs win "big" in the sense that the Court finds that laws barring SSM are unconstitutional; (3) Plaintiffs win "small" in the sense that Prop 8 is invalid in California (perhaps because, following the 9th Circuit, the decision to take away marriage was rooted in animus) but the Court does not say that other states must recognize SSM, and, in Windsor, the Court relies on some DOMA-specific ground like federalism or the animus that motivated Congress; or (4) the challenges are rejected on the merits.  If we assume that each Justice must choose among each of these options for each case, then a single Justice has 16 possibilities (1,2,3 or 4 in each case), and so the total number of possibilities for the Court as a whole is 16 to the 9th power or, equivalently (since 16 is 2 to the 4th power), 2 to the 36th power, or roughly speaking, 1 in 69 billion.  Those seem like slim odds, but not compared with the odds of filling out a perfect NCAA bracket.  You are about 134 million times more likely to get the SCOTUS prediction right than you are to fill out a perfect NCAA bracket.

But wait, there's more.  Your odds of filling out a perfect NCAA bracket are not quite as bad as mere chance would predict because you can predict most games more accurately than a coin toss would by looking at seeding, won-loss record, etc.  Sure, sometimes Florida Gulf Coast and Wichita State unexpectedly make the Sweet 16, but you still have the odds somewhat in your favor on any given pick.  So you might think that the difference isn't so stark.  Until you consider how much less random the Supreme Court is.

For one thing, there are correlations among the options that you don't see in basketball.  Harvard beating New Mexico did not make it any more or less likely that Syracuse would win its opening game.  But if you know that Justice Alito voted to find no justiciability in Perry, that increases the odds that Chief Justice Roberts voted the same way.  More broadly, for any particular Justice, the choice of option (2) (plaintiffs win big) in Perry will be highly correlated with option (2) (plaintiffs win big) in Windsor.

Likewise, just as it was very unlikely that Indiana was going to lose to James Madison, so it is very unlikely that Justice Thomas is going to vote for option (2) in either case.  (Insert James Madison/originalism joke here.)  Indeed, on the whole, the ex ante predictability of the SCOTUS is probably understated by the factor of 134 million times easier than picking a perfect bracket in the NCAA which you get by assuming randomness for both.  Put qualitiatively, NCAA basketball outcomes are more random than how any particular Justice will vote in the SSM case or any other case.

Just how predictable are the outcomes of Supreme Court cases?  Back in 2002, a group of scholars at Washington University Law School compared the results of predictions made by panels of experts with those made by a computer program that used a modified version of the so-called attitudinal model (which codes cases based on ideological factors).  The computer generally beat the experts but not by all that much, and the overall pattern showed a fair degree of predictability, certainly much better than chance for any given Justice in any given case.  (I published my take on the design and results of the forecasting project here.)

I've been asked by a number of reporters and others to predict the outcomes in Perry and Windsor, and so I have done so, but I don't claim to have any special insight.  Nonetheless, it's clear to me that people are interested in such things, so I'll take a crack at it in general terms.  I think that the most likely outcome in each case is a what I've called option (3)--a narrow win for plaintiffs that doesn't address the question of whether all state laws denying the right to SSM are invalid.  If the Court had only Windsor before it, I would predict that outcome with considerable confidence, because the federal interest in banning SSM from a state that has SSM is quite weak (in light of federal law's acceptance of state-by-state variations in the definition of marriage otherwise).

I do not make that prediction with great confidence, however, because I think the argument for option (3) in Perry is also weak.  Notwithstanding Judge Reinhardt's heroic efforts in the 9th Circuit to come up with a California-only rationale for invalidating Prop 8, I think it will be hard to persuade five Justices that it's unconstitutional to recognize then unrecognize SSM but permissible never to recognize SSM in the first place.  I understand and can make the Romer-based argument along these lines, but it strikes me that some number of Justices will think that the 9th Circuit rule discourages states from granting marriage rights to same-sex couples because doing so will be treated as a one-way ratchet.  If option (3) is effectively off the table in Perry, that makes option (2) more likely in Perry, and if the Court goes that route, then that result leads to option (2) in Windsor as well.  And the worry about moving too far too fast (which I don't share but some Justices might) could then lead some Justices to try to duck the case via option (1).  So there are potentially complex interaction effects between the cases.

People also wonder how particular Justices will vote, by which they mostly mean how Justice Kennedy will vote.  Here I'll say that in light of the fact that Justice Kennedy authored both Romer and Lawrence, I find it very hard to believe that if the case breaks ideologically, he would vote for option (4), i.e., against the plaintiffs on the merits.  And at least one case will break ideologically unless the Court votes to reject jurisdiction in both cases.  Accordingly, it strikes me that option (4) is very unlikely in Windsor and pretty unlikely in Perry.  But if you rely on these predictions to make investments or for any other purpose (like wedding plans), you do so at your own risk.


Joe said...

The Hawaii Supreme Court was likely to recognize a right for same sex couples to marry. Its constitution was not amended with a Prop 8 provision that blocked recognition of marriage.

No. It gave the legislature the power to decide either way. Reinhardt suggested this path -- it provides the legislature discretion, a way "to go it slow." The use of the legislature also limits the Romer-like harm, since the group in question can use normal legislative processes.

So, I don't think -- other than focusing on the animus behind the specific effort here (factual findings available) that it is as much of a "one way ratchet" as some people keep on saying.

They might just deny standing.

bmaz said...

Perhaps I missed something, but it appears your final prediction is option 2, full protection, is that right?

Michael C. Dorf said...

bmaz is right that I didn't make a firm prediction. I think the most likely of the four outcomes is option 3, but I wouldn't assign a probability of as much as .5 to any option.

Don said...

OK, so here are my "brackets" (before oral argument changes the probabilities):

PROP 8 is struck down, but there is no majority behind any rationale. It might be unconstitutional because heightened scrutiny applies (Ginsburg, Breyer); it might be because it lacks a rational basis and is motivated by animus (Kennedy); or it might just be because proponents don't have standing to appeal the District Court's judgment (Roberts, Sotomayor, Kagan). Scalia and Alito think it's fine, and Thomas says the District Court should have dismissed the case under Baker v. Nelson for lack of a substantial Federal question.

DOMA Section 3 is also struck down. Roberts, Thomas, and Kennedy say it's not necessary and proper to carry into effect an enumerated power. Ginsburg, Breyer, Sotomayor, and Kagan say it fails heightened scrutiny. Scalia and Alito think it's OK because it's rationally related to a legitimate Federal interest in discouraging perversion and keeping the Sodomites in their place.

The final result: to state is forced to recognize any same-sex marriage against its will (assuming California expressed its will in the election of Jerry Brown and Kamala Harris, both outspoken opponents of Prop 8), and the Federal government accepts as married those who are legally married in the state in which they reside. There is no public backlash, but Roberts might have to become Episcopalian if he ever wants to receive communion again.

Sam Rickless said...

Haven't you missed one possible line of reasoning re Prop 8? The argument would be, not that "it's unconstitutional to recognize then unrecognize SSM", but rather that it's unconstitutional (not for substantive due process reasons, but for equal protection reasons) for a State to give same-sex couples all of the rights associated with marriage without also granting them the right to *marry*. The ground would be that the only possible justification for such treatment of same-sex couples is a belief that they are second-class citizens or simple animus. Suppose that California told Chinese-Americans that they could operate businesses just like anyone else, but that their business licenses, unlike business licenses granted to others, had to have a big "CH" stamped on them. Singling a particular group out for differential treatment with respect to an officially recognized license (marriage, business, drivers, whatever) in a way that cannot be explained as a rational means of advancing a legitimate government interest runs afoul of the equal protection clause. This strikes me as something like the essence of the kind of Romer-type argument that is likely to attract Justice Kennedy in Perry.

What's more difficult, I think, is the prediction in Windsor. I don't see the federalism argument having much traction with SCOTUS (it doesn't seem to have much traction anyway), and the case for animus is more difficult (though admittedly, not impossible) to make. So one question is whether Justice Kennedy will be attracted to an argument that is based on the assumption that discrimination against non-heterosexuals or denial of the right to marry deserves heightened (intermediate or strict) scrutiny, whether on equal protection grounds (assuming reverse incorporation) or substantive due process grounds.

Suppose Justice Kennedy goes with the latter argument, striking down DOMA. Then it becomes difficult to see how the States could be permitted to do what the Federal Government would not be permitted to do. Any argument sufficient to strike down DOMA would also appear to be sufficient to strike down Prop 8.

So I see three options, really:

A. Prop 8 is struck down on narrow Romer-type grounds that apply only to States that treat homosexual couples and heterosexual couples the same way in all but name. DOMA remains on the books.

B. Prop 8 is struck down both on Romer-type grounds and on heightened scrutiny grounds. DOMA is struck down on heightened scrutiny grounds. All other State laws that are similar to DOMA would be struck down too.

C. Prop 8 and DOMA are struck down on Romer-type grounds. State laws in 42 States (the ones that are not like California) remain on the books, for now.

If Justice Kennedy stays true to his principles and doesn't try to massage the facts, we will see (A). If he gives up his principles because he wants to go down in history as an enlightened game-changer or if he is bothered by any option that involves a patchwork of different laws in different States (and there are reasons to be more worried about the patchwork here than there were reasons to be worried in Roe), we will see (B). If he thinks he can massage the facts to manufacture some sort of Romer-type argument to attack DOMA (and is less worried about incrementalism or patchwork problems), then we will see (C). I'm gonna go out on a limb and pick (C).

The Dismal Political Economist said...

That Thomas and Scalia are going to vote to uphold Prop. 8 and DOMA is a given. Really, on what evidence would anyone come to any other conclusion. Roberts and Alito will almost certainly vote to uphold DOMA. They see no bar to federal power when that power is used to promote concepts with which they approve. Finally, Justice Kennedy will also vote to uphold DOMA, to offset his deciding vote in rejecting Prop 8.

Why will Prop 8 be rejected? The standing issue here will be dominant. Kennedy will create a majority that argues that when California fails to defend the law those defending it must have standing, and in this case the defenders of Prop. 8 do not have standing because they cannot show harm.

The other four Justices joining Kennedy will go further and use the following logic. Because those defending Prop. 8 cannot show harm to themselves, they lack standing. And because they cannot show harm to themselves, harm to those who oppose SSM cannot be demonstrated. And since harm to other cannot be demonstrated there is no rational legal basis for Prop. 8. So it must be struck down. This lack of harm will be the basis of the four liberal Justices in supporting SSM.

The result will be to create a disastrous conflict in law, with some states allowing SSM, some not, some recognizing SSM when it was done in another state, some not and the Feds free to not recognize it at all. In other words, a typical Supreme Court mess.

The result will be bad for Republicans, who need the issue to go away. Instead the push will come to repeal DOMA and Republicans will once again find themselves on the wrong side of an issue.

Michael C. Dorf said...

Sam is right, of course, that a perfectly good argument for invalidating restrictions on SSM in a state like California is that such restrictions can only serve the purpose of connoting second-class citizenship. I explored that rationale at length in a 2011 Virginia Law Review article, Same-Sex Marriage, Second-Class Citizenship, and Law's Social Meanings, which is available at

There are two problems for the Supreme Court in relying on this reasoning as the basis for invalidating Prop 8: 1) Unlike the distinction between not-giving and taking-away, this rationale has application beyond California; and 2) It has the same perverse incentive effect on state legislatures as the not-giving/taking-away distinction. But I agree that on the merits (as opposed to strategically) this rationale is better in that it more closely gets at what's wrong with laws denying SSM.

Joe said...

"That Thomas and Scalia are going to vote to uphold Prop. 8 and DOMA is a given."

Thomas supported federalism concerns in Raich & in Lawrence v. Texas noted he thought enforcing same sex sodomy laws a waste of time.

It would not surprise me if Thomas actually takes the federalism arguments put forth (Volokh Conspiracy is quite enthused over them) seriously.

The Dismal Political Economist said...


You are correct about Justice Thomas's dissent, but the point is he also joined with Justice Scalia in agreeing that the state of Texas had the right, if it so wanted, to jail individuals for engaging in homosexual activity.

I just find it difficult to believe that a person that thinks a state has the right to jail a person for being gay does not also think that a state has the right to deny that same person the right to marry.

Joe said...

"I just find it difficult to believe that a person that thinks a state has the right to jail a person for being gay does not also think that a state has the right to deny that same person the right to marry."

This would apply to Prop 8. My suggestion, to be clear, is that he may very well vote to strike DOMA on federalism ground. I agree he is a likely vote to uphold Prop 8, if he finds standing appropriate.

The Dismal Political Economist said...


Interesting point, and if Justice Thomas comes out against DOMA on Federalism grounds it would be a victory of principle over preferred outcome.

I think it is likely that Thomas and Scalia will base their opinion on Federalism grounds, but the grounds will be that where the Federal government is entangled in marriage the Federal government has the right to define it, and can overrule the states, as is established law. For example, if the Feds want to grant a marriage deduction for the Estate Tax they can define marriage as it is applicable to that instance. If the Feds want to grant opposite gender couples a marriage deduction, but not same gender couples, they can do so because neither marriage nor gay activity is a protected right in the Scalia/Thomas world and thus does not violate equal protection requirements. They are firmly on record in that respect.

Alito could go either way, and the CJ will probably go with the majority so he can write the opinion. My original thinking was that Kennedy would vote to uphold DOMA, but now that looks about as good as my prediction of Indiana winning it all.

Of course, predicting Supreme Court outcomes in controversial cases is like predicting a perfect NCAA bracket, only tens times more difficult.

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