One
of
the
best
ways
to
forecast
future
events
is
through
past
trends.
The
U.S.
Supreme
Court
hears
the
majority
of
its
cases
after
a
decision
is
rendered
by
one
of
the
13
federal
courts
of
appeals.
Since
there
are
13
circuits
and
the
Supreme
Court
takes
somewhere
between
60
and
70
cases
each
term
the
Court
ends
up
taking
multiple
cases
from
most
circuits
each
term.
Last
term
the
high
numbers
of
cases
per
circuit
were
12
from
the
9th
Circuit
and
eight
from
the
5th
Circuit.
On
the
other
end
of
the
spectrum
the
Court
heard
one
case
from
each
of
the
Federal
and
3rdCircuits.
Each
Supreme
Court
case
tells
us
something
about
the
justices’
view
of
the
lower
courts
and
more
importantly
of
the
judges
below.
There
is
little
doubt
that
this
is
one
of
the
most
conservative
Supreme
Courtsin
history.
With
six
fairly
clear
conservative
justices
and
three
liberals,
the
conservative
justices
can
dictate
almost
every
case
outcome.
They
can
also
dictate
the
cases
the
Court
takes
as
the
norm
for
cert
decisions
(the
decision
to
take
a
case
on
the
merits)
is
that
four
justices
are
needed
for
grants.
This
is
called
the
Rule
of
Four.
This
post
uses
data
from
the
2021
Supreme
Court
term
to
help
predict
outcomes
of
cases
the
Court
has
heard
or
will
hear
this
term.
There
are
several
pieces
of
information
utilized
to
make
these
predictions.
Much
of
the
research
in
this
area
has
been
looking
at
cues
the
Supreme
Court
takes
from
the
lower
courts
in
selecting
the
cases
the
Court
hears
on
the
merits.
A
few
papers
using
a
variety
of
methodologies
have
focused
on
the
Court’s
decision
making
on
the
merits.
One
area
of
considerable
interest
has
been
the
role
the
Solicitor
General
plays
in
the
Court’s
decisions.
This
article
focuses
specifically
on
the
interaction
between
the
courts
of
appeals
judges
and
the
Supreme
Court
Justices
with
the
assumption
that
the
justices
base
their
decisions,
at
least
in
part,
on
assumptions
they
have
of
the
lower
court
judges
and
particularly
on
the
reliability
of
the
signals
the
lower
court
judges
send.
These
cues
include
when
certain
lower
court
judges
are
in
the
majority
or
when
they
are
in
dissent
(either
on
a
panel
or
an
en
banc).
Since
the
new
data
collection
for
this
article
is
only
from
one
full
term
I
supplemented
this
data
with
coding
from
the
Judicial
Common
Space
(JCS).
The
JCS
provides
ideology
scores
for
court
of
appeals
judges
based
on
the
judges’
appointing
presidents
and
home
state
senators.
Since
the
JCS
scores
are
not
based
on
actual
votes
though
they
only
provided
limited
utility
in
predicting
vote
outcomes
beyond
noting
the
party
of
appointing
president.
To
the
extent
that
the
conservative
justices
on
the
Supreme
Court
look
for
cues
from
more
conservative
judges
on
the
courts
of
appeals,
the
JCS
at
least
gave
some
indication
of
the
judges’
relative
preferences.
Last
Terms’
Judges
and
Cases
The
5th
Circuit
Court
of
Appeals
is
known
to
lean
heavily
conservative.
A
conservative
Supreme
Court
should
then
look
to
5th
Circuit
cases
with
liberal
judges
in
the
majority
or
with
specific
conservative
judges
in
dissent
to
overturn.
One
of
the
more
liberal
judges
on
the
circuit
is
Clinton
appointee
Judge
James
Dennis.
Dennis
was
on
three
panels
whose
decisions
were
reviewed
and
reversed
by
the
U.S.
Supreme
Court:
Ysleta
del
Sur
Pueblo
v.
Texas,
Ramirez
v.
Collier,
and
in
Dobbs
v.
Jackson
Women’s
Health.
Judge
Ho
of
the
5th
Circuit
is
a
conservative
judge
appointed
by
Trump
who
is
notable
for
providing
cues
to
the
Supreme
Court
of
cases
the
Court
should
affirm
or
reverse
based
on
his
positions.
Although
Judge
Ho
was
in
the
majority
of
Dobbs
v.
Jackson
Women’s
Health,
he
provided
reasons
for
why
he
was
in
the
majority
in
his
concurrence,
and
specifically
noting
the
troubling
tension
between
what
he
viewed
as
the
“proper”
ruling
and
what
stare
decisis
declared:
“It
is
troubling
enough
to
many
Americans
of
good
faith
that
federal
courts,
without
any
basis
in
constitutional
text
or
original
meaning,
restrict
the
ability
of
states
to
regulate
in
the
area
of
abortion.
But
that
is
of
course
what
decades
of
Supreme
Court
precedent
mandates.
Accordingly,
I
am
required
to
affirm.”
The
Supreme
Court
followed
Judge
Ho’s
positions
in
two
other
cases
as
it
affirmed
the
panel
decision
in
Cummings
v.
Premier
Rehab
Keller
and
reversed
the
decision
in
Houston
Community
College
System
v.
Wilsonafter
Judge
Ho
dissented
from
the
en
banc
denial.
Although
the
9th
Circuit
is
no
longer
the
most
reversed
appeals
circuit,
it
is
not
surprising
due
to
its
traditionally
liberal
composition
and
the
Supreme
Court’s
conservative
bent
that
the
Supreme
Court
often
reviews
cases
from
the
9thCircuit
and
reverses
them
on
the
merits.
The
Court
reviewed
several
9thCircuit
decisions
last
term
from
panels
with
repeat
judges.
It
also
took
more
cases
from
the
9th
Circuit
than
from
any
other
lower
court.
One
9th
Circuit
judge,
Milan
Smith,
authored
four
of
the
opinions
reviewed
by
the
Supreme
Court
in
the
2021
Term:
Garland
v.
Aleman
Gonzalez,
Becerra
v.
Empire
Health
Foundation,
United
States
v.
Washington,
and
Kennedy
v.
Bremerton
School
District.
All
four
decisions
were
reversed.
Smith
was
a
George
W.
Bush
nominee
to
the
9th
Circuit
and
has
a
high
JCS
Score
indicating
that
although
Smith
possesses
the
background
traits
that
the
Supreme
Court
might
associate
might
support,
he
is
one
of
several
Republican
appointed
circuit
court
judges
whose
decisional
choices
run
contrary
to
those
of
the
majority
of
the
Supreme
Court
Justices.
Conversely,
the
Supreme
Court
follows
cues
from
several
9th
Circuit
Trump
appointees–
notably
Judges
VanDykeand
Bumatay.
VanDyke
dissented
from
a
panel
vote
and
from
an
en
banc
denial
both
of
which
were
overturned
by
the
Supreme
Court
in
the
2021
term.
The
panel
dissent
was
in
Arizona
v.
City
and
County
of
San
Francisco
and
the
dissent
from
en
banc
denial
was
in
Shinn
v.
Ramirez.
Bumatay
dissented
from
the
en
banc
denial
in
Shinn
along
with
VanDyke,
as
well
as
in
three
other
en
banc
denials
leading
to
Supreme
Court
reversals
in
Federal
Bureau
of
Investigation
v.
Fazaga,
Egbert
v.
Boule,
and
Vega
v.
Tekoh.
Judge
Selya
of
the
1st
Circuit
is
another
Republican
nominee
(Reagan)
who
was
on
multiple
panels
that
the
Supreme
Court
reversed
last
term.
These
included
his
majority
opinions
in
Shurtleff
v.
City
of
Boston
and
Concepcion
v.
United
States,
and
his
majority
panel
participation
in
Carson
v.
Makin.
Beyond
specific
judges,
panel
ideological
compositions
and
votes
provide
the
Supreme
Court
with
indications
of
when
to
affirm
or
reverse
lower
court
decisions
as
well.
Here
are
some
examples:
The
Supreme
Court
was
not
always
predictable
in
its
decisions
based
on
panel
composition
though.
Two
examples
from
last
term
of
decisions
that
went
against
this
cue
theory
were
in
the
affirmance
of
the
4th
Circuit’s
decision
in
United
States
v.
Taylor
and
the
reversal
of
the
6th
Circuit’s
decision
in
US
v.
Wooden.
The
4th
Circuit
affirmance
was
probably
the
most
surprising
since
panel
consisted
of
all
more
liberal
judges:
Judges
Motz,
Kingand
Floyd.
The
decision
in
Wooden
was
less
of
a
shock
as
the
panel
included
two
conservative
judges,
Readler
and
Kethledge
and
one
more
liberal
judge,
Gilman.
Although
the
expectation
may
be
that
the
Court
will
uphold
decisions
of
panels
with
two
conservative
judge,
there
are
multiple
instances
where
the
Supreme
Court
reversed
decisions
with
this
type
of
panel
composition.
This
Term
We
only
have
a
few
decisions
from
the
2022
Term
so
far.
One
that
followed
intuition
based
on
the
previous
term
was
Helix
Energy
Solutions
Group
v.
Hewitt.
Judge
Ho
was
in
both
the
paneland
en
banc
majorities.
Although
several
Republican
appointees
including
Judge
Wiener
(who
was
on
the
panel
as
well)
dissented
from
Judge
Ho’s
en
banc
opinion,
Wiener
is
one
of
several
Republican
appointees
to
the
5thCircuit
who
often
vote
in
opposition
to
the
more
conservative
judges,
so
his
dissent
may
have
actually
directionally
signaled
the
same
thing
as
Judge
Ho’s
majority
vote.
We
should
also
be
able
to
make
some
predictions
for
this
term
if
decisions
from
last
term
help
portend
future
outcomes.
Some
such
decisions
are
from
the
9th
Circuit.
The
Supreme
Court
should
overturn
the
decision
in
U.S.
v.
Hansen
where
the
panel
included
more
liberal
judges
Gould
and
McKeown
and
Judge
Bumatay
dissented
from
the
en
banc
denial.
If
there
is
a
9th
Circuit
decision
that
the
Supreme
Court
should
affirm
it
is
in
Wilkins
v.
United
States
included
a
panel
of
all
conservative,
Republican
nominees
including
the
aforementioned
Judge
VanDyke
along
with
Judge
Bress
and
10th
Circuit
Judge
Ebel.
Conversely,
if
the
Court
continues
to
put
a
lot
of
faith
in
Judge
Bumatay’s
votes
then
it
should
overturn
the
panel
decision
in
Axon
Enterprise
v.
Federal
Trade
Commission
where
Judge
Bumatay
dissented
in
part
even
though
the
panel
included
two
other
Republican
nominees
with
Judge
Lee
and
6thCircuit
Judge
Siler.
Although
there
are
not
many
cases
where
the
Supreme
Court
should
affirm
based
on
lower
court
composition
there
are
a
few.
One
is
in
U.S.
ex
rel.
Schutte
v.
SuperValu.
Here
the
7th
Circuit
panel
consisted
of
more
conservative
minded
Judges
St.
Eve
and
Rovner
with
the
more
liberal
Judge
Hamilton
in
dissent.
Another
affirmance
may
come
in
the
8th
Circuit’s
decision
in
Jones
v.
Hendrixwhere
three
more
conservative
judges
—
Gruender,
Benton,
and
Shepherd
sat
on
the
panel
with
no
dissents.
One
last
affirmance
may
come
in
the
6thCircuit’s
decision
in
Perez
v.
Sturgis
Public
Schools
where
Judges
Thapar
and
Boggs
were
in
the
panel
majority
and
the
more
liberal
Judge
Stranch
was
in
dissent.
While
there
are
many
other
likely
reversals,
some
of
the
notable
possibilities
include
the
6th
Circuit’s
decisions
in
Polselli
v.
Internal
Revenue
Service
and
in
the
Third
Circuit’s
decision
in
Groff
v.
DeJoy.
The
panel
in
majority
in
Polselli
was
made
up
of
the
more
liberal
Judges
Moore
and
Donald
with
the
more
conservative
Judge
Kethledge
in
dissent.
The
panel
majority
in
Groff
was
made
up
of
the
more
liberal
Judges
Shwartz
and
Fuentes
with
the
more
conservative
Judge
Hardiman
in
dissent.
Conclusion
A
few
concluding
notes.
Firstly,
these
assumptions
are
not
absolute.
The
Court
already
defied
the
predictability
based
on
panel
composition
once
this
term
by
affirming
the
9th
Circuit’s
decision
in
Bartenwerfer
v.
Buckleywhere
two
more
liberal
circuit
judges,
McKeown
and
Nguyen,
sat
alongside
District
Court
Judge
Huck
with
no
dissents.
Secondly
and
as
mentioned
above,
since
much
of
the
information
from
panel
composition
likely
factors
into
the
Court’s
decisions
of
which
cases
to
take,
the
fact
that
the
Court
often
takes
cases
and
makes
decisions
related
to
lower
court
judge
composition
is
partially
predetermined
based
on
cert
decisions.
This
is
likely
accentuated
even
further
when
the
Court
takes
cases
where
more
conservative
judges
below
dissent
from
en
banc
denials.
Lastly,
the
Supreme
Court
generally
reverses
more
often
than
it
affirms
lower
court
decisions.
Many
of
the
reversals
from
last
term
were
probably
predictable
based
on
that
assumption
alone.
There
is,
however,
much
added
value
from
knowing
the
panel
compositions
from
below.
These
help
intimate
when
the
Court
may
affirm
lower
court
decisions
and
help
explain
why
the
Court
reverses
many
other
decisions.
The
current
Supreme
Court
seems
to
not
only
take
its
cues
from
conservative
lower
court
judges,
but
particularly
from
Trump’s
nominees
including
Judges
VanDyke,
Bumatay,
Ho,
and
Thapar
to
name
a
few.
If
we
had
to
make
a
separation
between
conservative
judges
for
predictive
purposes,
a
safe
bet
is
likely
to
first
trust
the
signals
sent
from
Trump’s
judicial
nominees
to
the
courts
of
appeals.
Read
more
at
Empirical
SCOTUS….
Adam
Feldman
runs
the
litigation
consulting
company
Optimized
Legal
Solutions
LLC.
For
more
information
write
Adam
at adam@feldmannet.com. Find
him
on
Twitter: @AdamSFeldman.