Predictions for Turner v. Rogers

Let me say right up front that I’m not a scholar, per se, of constitutional law. I certainly have an interest in it but I cannot claim to have studied Chief Justice Roberts jurisprudence in great detail. Nor can I say I have carefully examined Justice Kagan’s work as a Solicitor General. All of this is to say that I may lack some important insights into aspects of the justices’ jurisprudence, which will have an effect on how they vote in this case.

With that said…

Turner will likely win, but do not expect a landslide. Justices that like clear, bright lines such as Scalia and Thomas are probably going to side with Turner because he has a strong constitutional argument that Gideon’s progeny protect indigent defendants facing incarceration (regardless of a criminal/civil distinction). The Chief Justice and Justice Alito are harder to call. They often gravitate away from rational basis analysis but neither of them has traditionally been very friendly for criminal defendants. Jusice Alito, in particular, is likely to go for the respondents. He’s been very vocal about protecting the public and has made remarks in both his opinions and oral arguments, which suggest he has little sympathy for criminal defendants…not surprising given that his previous line of work was for the U.S. Attorney’s office for the District of New Jersey. My guess is that he’ll find sympathy for poor mothers and disgust for deadbeat dads.

What of Justices Kagan, Breyer, Ginsburg, Sotomayor, and Kennedy?

First of all, Justice Kagan is particularly difficult to predict since she lacks the judicial history of others such as Justice Sotomayor and since she comes heavily steeped in academia. She’s brand new to the Court and has recused herself on quite a number of cases this term due to her involvement with them as the Solicitor General. A fun fact: Justice Kagan taught at my alma mater’s law school but left to work for Clinton during his Presidency. After serving in the Clinton administration, Justice Kagan attempted to return to University of Chicago but was denied a position…she decided to take a job at Harvard Law instead. My inclination is to say she’ll likely hold for Turner because he has the stronger legal argument and such well-founded legal logic will perhaps take priority over factual and policy considerations that the respondents argue. Scholars aren’t usually fond of emotional appeals like the ones respondents advance; scholars from the Chicago tradition are especially distrusting of such appeals.

Justice Breyer is likely to go for the respondents since he takes a very hands-off approach to the judiciary. In other words, these matters are usually best left to the legislature not the courts. I think Justice Ginsburg will probably follow suit. She usually takes a similarly restrained approach to judicial decision-making. Moreover, given the particulars of the child support scenario, she may have display some sympathy for women; in her early career, she was refused job opportunities because of her gender. I’m tempted to say Justice Sotomayor may also find sympathy for mothers here, but on the other hand she has shown herself being open to defendants rights so far (with a few exceptions such as Michigan v. Bryant).

This leaves Justice Kennedy. I don’t know a whole lot about him except that he generally tends to vote with the Roberts/Scalia/Thomas/Alito block. My guess is that, barring information I’m not aware of about his jurisprudence, he’ll probably swing for Turner.

So my prediction, subject to re-examination and modification after oral arguments is: Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Kagan, and maybe Justice Sotomayor for Turner, creating a small majority. I predict Justice Alito, Justice Breyer, and Justice Ginsburg will definitely hold for Mrs. Rogers.

-Zachary Cloud

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