With the recently wrapped up 2012-2013 term of the United States Supreme Court now history, it is time to review the performance of this term. Last term, John Roberts left Washington one of the most disliked people among conservatives for his decision in the Obamacare cases. Like last term, they saved the most contentious issue this term- the gay marriage cases- for the last day. Unlike last term, however, there was no surprise and everything went pretty much as expected with those cases and there was no great outcry this year because, I believe, people had braced themselves for the results. In fact, there was a lot of coverage in conservative media outlets confirming this view- not an acceptance of same sex marriage, but more a realization that this is a state-level issue and that federal government should stay out of it.
There are a few statistics to discuss before looking at some of the cases of importance and what they mean in the bigger picture. The first glaring statistic is the performance of the government before the Court. The administration’s view is expressed by the Solicitor General’s office- basically the Nation’s lawyer. In cases where their office entered the case on either side or where the United States was a party in the case, or one of its executive agencies, their success rate was a dismal 42.8%. This is not good even though they may have had some high profile victories along the way and some of them were nuanced, like the Windsor gay marriage case. Regardless, this can be viewed as nothing less than a smack down by the Court of Obama administration views and arguments. Thankfully, there is a somewhat suspect check on Obama’s agenda.
Much is made of the partisan differences on the Court and this is often revealed in the number of 5-4 decisions. However, although higher than last term, the amount of 5-4 decisions accounted for only 29% of all cases heard. Conversely, 49% of all cases were unanimous 9-0 cases, which is up from last term. Even in the 5-4 cases this term, there were some strange alignments besides the obvious one in the Proposition 8 case. Kennedy still remains the most important swing vote in 5-4 cases, although less so this term than in previous recent terms. In these 5-4 decisions, Kennedy sided with the conservative wing 43% of the time and the liberals 26% of the time. Thus, Kennedy was the swing vote 69% of the time in 5-4 decisions. The 31% of other decisions decided by a strange voting bloc where Kennedy was not the deciding factor was the highest since the 2007-08 term. This does not necessarily mean that Kennedy’s role as the swing vote is diminishing, although it was certainly counted on less in this term.
It is true that by far Kennedy was in the majority in 5-4 cases the most at 87%. It would surprise some to know that the next closest was Thomas at 65%. But, since 5-4 coalitions can be tenuous, it is equally important to look at who authors the majority decision in these cases. There were 23 cases decided 5-4 this past term. Kennedy was in the majority in 20 of them. The next highest was Thomas at 15. However, it was Alito who authored the majority opinion the most in 5-4 decisions. He was in the majority 13 times and authored 6 of the decisions. Some of this may be attributable to the equitable distribution of majority decisions and some attributable to his growing role in Supreme Court jurisprudence which, if true, is good news for conservatives. Each Justice had 8 majority decisions overall (Ginsburg had the odd ninth).
As for the ideological bent of the Court this term, 70% of 5-4 decisions were along those lines with conservatives prevailing 43% of the time. In overall cases- not just the 5-4 decisions- conservative views prevailed 63% of the time which is the average over 8 years. The 43% rate of prevailing in 5-4 decisions is slightly below the 8 year average, but no concern for worry. For example, in the 2011-12 term, conservatives prevailed only 33% of the time, but the year before they prevailed 63% of the time. This term, they settled somewhere in between. Overall, of the 23 5-4 decisions, the traditional conservative bloc plus Kennedy accounted for 10 cases while the liberal wing plus Kennedy accounted for 6 cases. Thus, Kennedy was involved in 16 of 23 cases decided 5-4. But, there were other bizarre coalitions in these cases. The 5-member majority of Roberts, Kennedy, Thomas, Breyer and Alito accounted for three cases. Then there was the absolutely strange coalition of Roberts, Scalia,Ginsburg, Breyer and Kagan in the Proposition 8 case. Scalia and Kennedy joined the liberal female members of the Court in another case while Thomas plus Scalia and the females formed another odd majority. Finally, there was the Alleyne case where Thomas crossed over and joined the liberal wing in the majority.
Looking at Justice agreement, one thing is certain: the three females- Ginsburg, Sotomayor and Kagan have the lowest frequency of disagreement among themselves. As one votes, chances are the other two will follow. Breyer has a greater degree of disagreement with this Female Troika, but not by much. Among conservatives, the frequency of disagreement is not that low. For example, among the liberals, the average level of disagreement is 8%. For the conservative wing, that figure is about 13%. Hence, the liberal wing tends to be more rigidly ideological than the conservative wing. Surprisingly Roberts agrees in full the least with Elena Kagan and Clarence Thomas. Scalia agrees the least with Breyer and Sotomayor. In fact, when charting this across several terms, Thomas is the most conservative with Ginsburg the most liberal. Roberts is in agreement with Kennedy more often than not which would put him more in the middle. On the right, the order of conservatives would go: Thomas, Alito, Scalia, the Roberts with Kennedy in the middle. On the other side, the order would go Ginsburg the most liberal, followed by Kagan, Sotomayor and Breyer. Graphically it looks like this liberals on the left: GINSBURG-KAGAN-SOTOMAYOR-BREYER-KENNEDY-ROBERTS-SCALIA-ALITO-THOMAS.
Liberal detractors usually point to Clarence Thomas to direct their vitriol. It really disturbs them that there are these things called “conservative African-Americans.” Thomas is generally vilified and marginalized by the liberal media Court watchers. However, the one thing they cannot deny is that Thomas has been probably the most consistent Justice on the recent Court. Most point to Scalia, but Scalia’s conservatism has a libertarian bent to it. Both subscribe to the “originalism” philosophy of jurisprudence, but of a different kind. Regardless and despite the liberal media’s portrayal of someone who is supposedly not worthy of the intellectual requirements and rigor of the Supreme Court- most likely predicated on the fact he does not verbally participate at oral argument- this term, he wrote the most decisions- 25 in all- 8 majority decisions, 11 concurring decisions and 6 dissenting opinions. Furthermore, he had two 5-4 majority decisions versus none last term. This indicates that his vote was crucial to the majority or that his view held the day. In the Genesis Health Care decision, he wrote for the conservative wing. For the Alleyne case, he wrote for the liberal wing and the opinion would have been assigned to him by Ginsburg, the most senior member of that liberal majority. Incidentally, Scalia had the most dissenting opinions which is obvious since he had the lowest frequency in the majority (at 78%). And in case anyone is interested, Sotomayor and Scalia ask the most questions during oral argument.
Unanimous decisions (9-0) tend to be the no-brainer decisions. This is evident in the amount of time it takes between oral argument and announcement of the decision. For unanimous cases, the average length of time elapsed is 68 days whereas for 5-4 decisions, it takes an average 116 days. Who had the most unanimous decisions opinions? It was actually the liberal Ruth Bader Ginsburg. Of all the 9-0 decisions, Ginsburg, Kagan and Sotomayor collectively account for more than 50% of the majority opinions. Conversely, the 5-4 decisions tend to be tougher because often the voting coalition may agree with a certain outcome but for different constitutional and legal reasoning. Hence, it becomes important that in order to hold that coalition together, they get the decision correct. As the alleged swing voter with a lot of seniority and the fact that in 5-4 decisions Kennedy has the highest frequency in the majority, one would expect Anthony Kennedy to have the most but you would be wrong. In fact, Samuel Alito had the majority opinion the most among 5-4 decisions. As for that alleged dummy Clarence Thomas, he had the same as such liberal luminaries as Stephen Breyer (a pompous ass if there ever was one) and Sonia (a proud Latina woman) Sotomayor.
The favorite whipping boy Circuit Court of Appeals in the Court this past term was the infamously liberal Ninth Circuit seated in San Francisco. While many rail about the Ninth Circuit, it is the most populous which would simply increase the chances of an appeal to the Supreme Court taking in over 19% of the US population. However, if population alone were the reason for the frequency of appeals to the Supreme Court, one would expect the 11th Circuit based in Atlanta and representing 10.64% of the population to be second in terms of appeals. They actually rank 4th after the Second Circuit (based in New York) and 5th Circuit (based in New Orleans). Of the 14 cases out of the Ninth heard this term, their decisions were affirmed only twice for a 14% approval rate. Not surprisingly, only 9 of the 27 judges in the Ninth Circuit were appointed by Republican presidents. For the 2nd Circuit, their success rate before the Supreme Court this year was 40%. Six out of 13 active judges in that Circuit were Republican-appointed. And for the Fifth Circuit, their success rate was comparable to the Ninth at 14%. The most interesting thing here is that 10 of the active 15 judges in that Circuit were Republican-appointed. In case of interest, the Circuit with the greatest success rate with at least three cases was the 7th with a success rate of 67% (they are based in Chicago) with seven of ten judges Republican appointed (all three Democratic appointments were by Clinton).
How out of whack is the Ninth Circuit? Of the 14 cases from there, their decisions were affirmed on only two occasions. Of those 12 losses, there were at least 8 decisions where there were 7 or more Justices in the majority. In fact, 5 of the Ninth Circuit reversals were unanimous. Only one decision was 5-4. In sum, even the liberals on the United States Supreme Court disagree with the liberal Ninth Circuit Court of Appeals most of the time. Some would argue that this is justification for breaking up the Ninth Circuit which Congress has the power to do. This is a Circuit that takes in a large swath of territory and population. Furthermore, the Circuit is composed of such disparate states as the ultra-liberal California and Hawaii and the conservative states of Idaho, Montana and Arizona. Simply, conservatives stand a small chance of success before the Ninth Circuit which may be why so many cases from there end up before the Supreme Court and are reversed. This would indicate that the US Supreme Court is still, at heart, conservative in outlook.
Along these lines, state level court decisions that reached their way to the Supreme Court on appeal were upheld 42% of the time (5 successes, 7 failures). Support for state supreme court decisions generally infers deference to the states in traditional state matters. This would indicate that the current Supreme Court is wary of entering into state level affairs. Of the 12 cases heard on appeal from state courts, the Solicitor General’s office intervened in 11 of them and their view prevailed in only four of those 11 cases. Going forward, the concept of state’s rights and federalism may hold greater and greater sway except in very strong exceptional cases and it will be interesting to look at this trend in future terms.
In part 2, this writer will look at some of the trends, observations and criticisms of the Roberts Court and some of the individual cases this year that illustrate where this Court may be headed. Then, in the final part, I will take a look at some of the cases taken thus far for next term because there are some important ones coming along.