Supreme Court justices try to predict the future.

Supreme Court Justices Like to Predict the Future. They Aren’t Very Good At It.

Supreme Court Justices Like to Predict the Future. They Aren’t Very Good At It.

The citizen’s guide to the future.
Sept. 19 2017 7:45 AM
FROM SLATE, NEW AMERICA, AND ASU

Black Robes and Crystal Balls

Supreme Court justices like to predict the future. They aren’t very good at it.

Photo illustration by Slate. Photos by Thinkstock, Mark Wilson/Getty Images, SAUL LOEB/AFP/Getty Images, Mark Wilson/Getty Images, and Mark Wilson/Getty Images.
As prognosticators go, their record is mixed.

Photo illustration by Slate. Photos by Thinkstock, Mark Wilson/Getty Images, Saul Loeb/AFP/Getty Images, Mark Wilson/Getty Images, and Mark Wilson/Getty Images.

The justices of the U.S. Supreme Court are given lifetime appointments to decide paramount questions of law that affect almost every aspect of American life. It is therefore unsurprising that from time to time these extraordinarily powerful secular jurists attempt to play oracle. Justices prefer to lob prophecies when they are writing in dissent—usually, though not always, to forecast some calamitous consequences that will inevitably flow from the majority’s ruling. But how often do these supreme prognosticators actually get it right? Here’s a roundup of the justices’ most famous predictions and a status update on whether they have yet come to pass.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Prediction: Allowing Guantánamo detainees to challenge their detention will get Americans killed.

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Predictor: Justice Antonin Scalia

Right or wrong: Wrong

In 2008’s Boumediene v. Bush, the Supreme Court ruled that the government may not suspend the constitutional right of habeas corpus at Guantánamo Bay. Its holding theoretically allowed the “enemy combatants” held at Guantánamo to challenge their detention in federal court. In dissent, Scalia declared that the majority’s decision “will almost certainly cause more Americans to be killed.” But this dark augury totally missed the mark. In reality, the lower courts have mostly rejected habeas petitions filed by Guantánamo prisoners, keeping them locked up. Only a few dozen prisoners have been released under Boumediene. And none of the former detainees suspected of engaging in terrorism since their release were freed as a result of the ruling. 

As for Lakhdar Boumediene himself: A federal court promptly ordered him released once it became clear that prosecutors’ case against him relied upon a single unnamed source of dubious credibility. A former employee of the Muslim branch of the Red Cross, Boumediene resettled in France to live with his wife and three children. He had been held in Guantánamo for more than seven years.

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Prediction: Permitting states to opt out of Medicaid expansion won’t have much effect on the Affordable Care Act.

Predictor: Justice Ruth Bader Ginsburg

Right or wrong: Wrong.

When the Supreme Court handed down its 2011 decision mostly rejecting a challenge to the Affordable Care Act, Ginsburg read a bench statement asserting that the law had “survive[d] largely unscathed.” Ginsburg dissented from a key part of the ruling that allowed states to opt out of the ACA’s uncommonly generous Medicaid expansion. (Originally, states had to accept the expansion or lose Medicaid funding altogether.) But she assumed, understandably, that most states would still accept the federal funds even when given the option not to.

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Unfortunately, more than five years later, 19 states still haven’t expanded Medicaid—and their refusal to do so has badly scathed the ACA. By allowing these states to refuse expansion, the Supreme Court ensured that the ACA would not meet its goals in reducing the uninsured rate. (If Texas alone expanded Medicaid, more than 1 million people would gain health insurance.) Even worse, a state’s refusal to adopt Medicaid expansion drives up health care costs for everyone in the state, sabotaging the ACA’s efforts to premiums in big swaths of the country. Ginsburg appeared to underestimate Republicans’ political opposition to “Obamacare.” By letting states refuse Medicaid expansion, her colleagues on the bench kneecapped the ACA.

Prediction: Requiring forensic analysts to testify at criminal trials will let innumerable guilty people off the hook.

Predictor: Justice Anthony Kennedy

Right or wrong: Wrong

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In 2009’s Melendez-Diaz v. Massachusetts, the Supreme Court ruled that forensic analysts who create laboratory reports for criminal trials must testify if called by the defense. Scalia’s majority opinion reasoned that these reports are “testimonial” evidence and that their authors are thus “witnesses” under the Confrontation Clause. In a dissent, a deeply irked Kennedy wrote that such analysts will “now bear a crushing burden” and would often be unavailable to testify. As a result, myriad “guilty defendant[s]” will “[go] free on a technicality.”

History has, in this instance, smiled kindly upon Scalia. In September, SCOTUSblog’s Andrew Hamm reviewed two empirical studies evaluating the real-world effects of Melendez-Diaz. One found that the impact of the decision on lab analysts was “none to minimal.” The ruling did trigger a small increase in subpoenas, but this “initial impact … subsequently waned.” The other study found that many defendants waive their right to make analysts testify and that forensic labs “have not found the burden intolerable.”

Scalia had posited in his opinion that “the sky will not fall after today’s decision”; he appears to have been correct, Kennedy’s dire warnings notwithstanding. In fact, intervening events have only proved the wisdom of his judgment. Recent crime lab scandals have revealed that tens of thousands of people have been sentenced to prison on the basis of falsified forensic reports. In Massachusetts, the misdeeds of analysts Annie Dookhan and Sonja Farak alone resulted in as many as 42,000 wrongful convictions. Defendants’ constitutional right to interrogate such analysts at trial to evaluate their candor and competence has never been more vital.

Prediction: Striking down a federal ban on same-sex marriage will not lead to nationwide marriage equality.

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Predictor: Chief Justice John Roberts

Right or wrong: Hilariously wrong

In 2013’s United States v. Windsor, the Supreme Court ruled that the Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages, violated the Constitution. Kennedy’s majority opinion held that DOMA “demeans” and “injure[s]” same-sex couples by imposing a “stigma” that infringes upon their constitutional right to “equal dignity.”

Scalia had predicted this outcome when the court legalized sodomy a decade earlier, and in his Windsor dissent, he presaged that the majority’s decision would eventually knock down all state-level same-sex marriage bans. Roberts, however, was more optimistic. In a brief dissent, Roberts alleged that Kennedy’s analysis “does not decide” the constitutionality of state-level marriage bans and “leads no further” than DOMA.

Roberts was quickly proved wrong, again and again and again. Over the next two years, dozens of lower courts held that the logic of Windsor required the invalidation of state marriage bans. In 2015, the Supreme Court agreed, ruling that, like the federal ban, these state laws unconstitutionally intruded upon same-sex couples’ “equal dignity.” Scalia took some grim satisfaction in seeing his prophesy vindicated once again; Roberts wrote a notoriously nasty dissent, stung by the inaccuracy of his conjecture just two years earlier.

Prediction: Affirmative action won’t be necessary by 2028.

Predictor: Justice Sandra Day O’Connor

Right or wrong: Too soon to tell (but probably wrong)

In 2003’s Grutter v. Bollinger, O’Connor dropped her longstanding opposition to affirmative action and authored a decision upholding the practice in higher education. O’Connor explained that, for now, affirmative action remained permissible at state universities to maintain “the educational benefits that flow from a diverse student body.” But at the end of her opinion, O’Connor declared: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

This prediction seemed to imply that the race gap in higher education would be sufficiently narrow by 2028 to kill affirmative action for good. Eleven years out from that year, the forecast is bleak: The overall race gap is shrinking somewhat, but the achievement gap between whites and blacks is actually widening. Minorities are still struggling to complete college at the same rate as whites and disproportionately attend for-profit or community colleges. It seems quite likely that, in 2028, selective schools will still need to use race-conscious admissions in order to foster the culture of diversity that Grutter praised.

Indeed, the court may have already recognized the fact that O’Connor’s deadline was overly sanguine. When Kennedy reaffirmed the constitutionality of affirmative action in 2016, his majority opinion made no mention of Grutter’s 25-year cutoff. Perhaps Kennedy has finally realized that, for all the immense influence bestowed upon the court, its justices still haven’t quite figured out how to predict the future.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.

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