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Abstract

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans—yet the inner-workings of the Court are not fully transparent. The Court, without explanation, decides only the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome is a complete surprise.

Court watchers frequently make predictions about the cases in articles, on blogs, and elsewhere. Individually, some may be right, some may be wrong. Until recently, there was not a way to pool together this collective wisdom, and aggregate ex ante predictions for all cases pending before the United States Supreme Court.

Now there is such a tool. FantasySCOTUS.net from the Harlan Institute is the Internet’s premier Supreme Court Fantasy League, and the first crowdsourced prediction market for jurisprudential speculation. During the October 2009 Supreme Court Term, over 5,000 members made more than 11,000 predictions for all eighty-one cases decided. Based on these data, FantasySCOTUS correctly predicted the outcome in more than fifty percent of the cases decided, and the top-ranked predictors forecasted seventy-five percent of the cases correctly. This essay explores the wisdom of the crowds in this prediction market and assesses the accuracy of FantasySCOTUS.

FantasySCOTUS is only two years old, but the implications and applications of this information market are intriguing. This article considers the possible future of FantasySCOTUS. First, from a jurisprudential perspective, FantasySCOTUS illuminates public perceptions of how the Supreme Court works as an institution. Specifically, it serves as a comprehensive polling device to provide an honest, albeit unscientific, survey that reflects how a large sample size of Court watchers view the Justices and their legal realist ideological proclivities, particularly in 5–4 decisions. If FantasySCOTUS can accurately reduce each of the Justices to nothing more than a conservative or liberal vote, that may have broader implications to the rule of law, and objective, detached standards of judging.

From a practical perspective, with more accurate future versions of FantasySCOTUS, attorneys will be able to rely on this program to assist them with litigation decisions involving cases pending before the Supreme Court. As our understanding of judicial behavior improves—perhaps through scanning all filings in PACER (Public Access to Court Electronic Records)—and the program can shift from a pure crowdsourcing technique to a commoditized super cruncher information service, a prediction engine can be created for lower courts. An interactive litigation assistant—think of the iPhone’s Siri application—could allow attorneys and laymen alike to instantly understand and grasp the law in any given area by simply asking questions. Such technology would be of great value for practicing attorneys, and provide access to justice to people who cannot afford lawyers. This is the promise of law’s information revolution, of which we hope FantasySCOTUS is but a first step to the future.

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