In other Lone-Star-State news, when Josh Blackman returns to the Harlan Institute on July 21, 2012, he will assume a position as an Assistant Professor at the South Texas College of Law in Houston.

Corey Carpenter, Laura Lieberman, and Cara Tucker are graduating from the George Mason University School of Law.

Corey reading the Constitution at Shake Shack

Cara and Laura representing Team Harlan

Yoni Roth is graduating from the University of Toronto Law School

Yoni

Sam Reitman is graduating from the Georgetown University Law Center

Sam

Matt Allen is graduating from Clemson University.

Zak Slayback is graduating from Somerset High School (the winner of the inaugural season of FantasySCOTUS.org). 

Zak and Justice Thomas

Zak will be going to UPenn State in the Fall. Good luck in Philly!

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.

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.

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.”

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).

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.