SCOTUS 2012-2013 Voting Patterns, Part III

We’ve been looking at the 2012 session of the Supreme Court, which ended June 30, 2013. Part I looked at the full list of cases and how often each justice voted with either a liberal or conservative bloc. Part II looked at just the cases in which there was disagreement, 39 of the total cases, and then measured the percentage of cases in which each justice voted with either bloc.

Today we’ll look at how many were close decisions, and how many had greater agreement.

There were 22 close decisions, decided by a single vote. A 4-5 vote means 4 conservative dissenting votes (which may or may not all have come from the usual conservative bloc), and 5 majority votes going with the liberal bloc. A 5-4 vote means 5 conservative majority votes and 4 liberal dissenting votes. Some of the cases note an abstention. Note that this relates to the dispersion of the justices’ votes, not necessarily the ideology of the decision. Also note that this data does not include the 35 cases with complete agreement. One thing I noticed was that the easy decisions tended to come early in the session, with the more divided cases being pushed to the end. The most controversial decisions show up in June, and likely late June.

Close Decisions
Vote Dispersion	Number of Such Cases	Percentage
4-5	8	40.9% favor L
3-5-1	1
5-4	12	59.1% favor C
5-3-1	1
Total	22	56.4% are close decisions

 

Moderately Close Decisions
Vote Dispersion	Number of Such Cases	Percentage
3-6	6	100% favor L
2-6-1	1
6-3	0	0% favor C
5-2-1	0
Total	7	17.9% are moderately close decisions

 

High Agreement Decisions
Vote Dispersion	Number of Such Cases	Percentage
2-7	3	40.0% favor L
1-8	1
7-2	3	60.0% favor C
8-1	2
7-1-1	1
Total	10	25.6% are high agreement decisions

The very mixed case of Missouri v. McNeely is considered a 1-8 decision, because there were 8 majority or concurring opinions in all or part, and only 1 dissent without partial agreement. The dispersion, however, doesn’t well identify the differences of opinion on that particular case. Some of the closer cases are also more mixed than this broad look shows.

If you look at all 39 decisions, 20 leaned toward the liberal bloc, and 19 leaned toward the conservative bloc. That’s 51.3% L and 48.7% C. So there’s a slight lean toward L overall. However, on the close cases, the lean is toward C. The majority of cases (without total agreement) are close cases. That means that for the time being there is a slight advantage toward C.

Five years into this administration, so far there has been no change to the conservative bloc on the court. Two liberal justices were replaced, with Justices Kagan and Sotomayor. If either Ginsburg or Breyer were to step down, the replacement is certain to be at least as liberal as the current justices. This is somewhat likely: Justice Ginsburg is 80 and has served since 1993. Justice Breyer, who has served since 1994, is a relatively young 75 (next month), so I expect he will stay.

If any of the other five steps down, even Kennedy, the weight toward the already solid L bloc shifts so dramatically that taking any controversial decision to the Supreme Court would be assumed to go toward the liberal direction. How likely is a change to these five? Here’s the age and length of service data.

Justice	Age	Year Appointed	Length of Service
Thomas	65	1991	22 years
Scalia	77	1986	27 years
Alito	63	2006	7 years
Roberts	58	2005	8 years
Kennedy	77	1988	25 years

(Happy Birthday to Justice Kennedy next week.) The conservative bloc is relatively young. Barring sudden health problems, it is quite likely the four conservatives will stay throughout this presidential term. I think they know how crucial their point of view is to the court. I believe it is also relatively likely Kennedy will stay; I think he knows he is a swing vote, and his leaving would cause some upheaval to the country that he could avoid simply by waiting until someone else makes a change first. He can’t do that indefinitely, but he can probably do it until after another presidential election.

Observations

It would take a deeper look at the Court to reveal all that this session can tell us. But I will make just a couple of observations based on specific cases. (I wrote more here, "On the Court," and here, "Marriage Rulings.")

Fisher v. University of Texas at Austin concerned using race in acceptance policies. In the specific case, a young white woman, who was just under the automatic admittance level, was refused admittance when a black woman with lower qualifications was admitted. The young woman was discriminated against because of her race. In recent past cases, race has been allowed in admittance as one of many factors a university could use. While that policy isn’t completely wiped out, this case makes it clear that using race will cause discrimination against someone, and the trend is toward avoiding race in selection criteria for that reason. This has been a conservative argument for a long time, so it is surprising that the liberal bloc also agreed. Justice Sotomayor abstained, but only Justice Ginsburg dissented.

The other case that reflects the trend of social belief is the US v Windsor case, concerning the federal Defense of Marriage Act. The case itself concerned inheritance law for two women "married" in Ontario, Canada. Their "marriage" contract was recognized by the state of New York, but when one of the parties died and left her estate to her partner, Windsor, the federal government refused Windsor the federal estate tax exemption for surviving spouses.

I have some sympathy for the parties involved; a person ought to be able to say how their estate should be dispersed without the federal government coming in and glomming on to major portions of it. But the difficulty is in using the case to redefine “spouse” and “marriage.” It is likely the problem could have been avoided if the parties recognized that their contract was not recognized in the country they immigrated to; they could therefore have drawn up trusts and other contracts to accomplish the inheritance with as little tax damage as possible. Instead they use the case to force policy on the entirety of their new country. On purpose?

Such a case was bound to appear eventually. But the majority ruling, with Kennedy sneering at the vast majority of all the people in the history of the world who see a value in what has always been marriage, was beyond the pale. Scalia’s dissent was equally cutting in return, pointing out how un-Court-like it was for such personal social ideas to be put forward as Court ruling void of connection to the actual written law.

I don’t know what the eventual fallout will be, but it is clear that controversial decisions can be decided either based on the law or based on social opinion trends, which have been manipulated by media in opposition to mounting social data.

The Supreme Court was never intended to have such power over the people. It is meant merely to keep the legislative and executive branches in check, so we are not deprived of our Constitutionally protected rights. I pray that these nine people will agree more—by reading and understanding the Constitution, as their oath requires them to do.