The past two years, I have put together data comparing the
conservative vs. liberal tendencies on the court. The first time was in 2012,
ahead of rulings, to see if there was any way to predict the outcome of the
Obamacare ruling. In 2013 I gathered the data (Part I, Part II, Part III) after
the session. It turned out that there wasn’t a lot of predictive power,
although there’s a fair amount of predictable sticking together of voting
blocks. There was a surprising amount of agreement on the Court, more than
expected.
I considered repeating the exercise this year. But I came
upon a data source that goes well beyond what I was doing. I haven’t seen a
chart of making the exact comparison I did, but the data is in there. So, for
now, we’ll turn to that data, and sum up a bit.
That data source is StatPack from SCOTUSBlog. (SCOTUSBlog is not an
official news source of the Supreme Court; it is a law blog that looks at the
Court, and is handy to turn to.)
Page 18 (of 63 pages of data), titled "Strength of the Majority," charts some useful
totals. There were 73 cases decided during the October 2013 Term (which ended
in June 2014). Of those, 48 were
unanimous. That’s agreement among all 9 justices 66% of the time. They were
unanimous on two out of every three cases. By comparison, last year there were
74 cases, and 35 were unanimous—a little under 50%. So we saw greater agreement
overall this term.
There were two cases with a majority of 8 and minority of 1.
(The average single-dissent cases between 2006 and 2012 was 6.4, so there was
less going alone this year.) There were seven cases with a majority of 7 and a
minority of 2. There were six cases with a majority of 6 and minority of 3. And
there were ten cases with a majority of 5 and a minority of 4.
Our interest tends toward the cases with more disagreement. The
ten 5-4 cases this year, is below the average of 17 between 2005-2013. It matches
2013, however. Of those ten decisions, four were decided with the usual
conservative block: Alito, Thomas, Scalia, Roberts, and Kennedy (the swing
vote). Two were decided in favor of the usual liberal block: Ginsburg, Breyer, Sotomayor,
Kagan, and Kennedy.
Then there were four that had mixed ideological blocks.
· Navarette v. CA Roberts,
Kennedy Thomas, Breyer, Alito (conservative block missing Scalia, adding
Breyer)
· Scialabba v. Cuellar de Osorio Roberst, Scalia, Kennedy, Ginsberg,
Kagan (even split)
· Michigan v. Bay Mills Roberts, Kennedy, Breyer, Sotomayor, Kagan (liberal
block missing Ginsburg, adding Roberts)
· Paroline v. US Kennedy,
Ginsburg, Breyer, Alito, Kagan (liberal block missing Sotomayor, adding Alito)
So, if we were scoring the blocks, conservatives led 5
times; liberals led 4 times, and there was one ideological tie. Another detail
is to notice how often some predictable justices were in the majority on the
5-4 divided cases. Scalia and Thomas were in the majority 50% of the time. Breyer
and Kagan were in the majority 50% of the time. This year's 50% conservative victory is slightly
better than usual. The average between 2005-2013 is 46%, and only in 2006, 2009, and
2010 did the conservatives have the majority on 5-4 cases 50% of the time or
higher. So, it wasn’t a terrible year for the Constitution. But again, I say
the Court is balanced on a knife edge.
On July 11th, I mentioned there were 19 cases
concerning the HHS mandate within Obamacare, so far. And every single time the
decision went against HHS and for the plaintiff. That’s an extraordinary score.
You would think that the attorney general, defending the executive branch’s
position, would be demoralized with such a score. But that doesn’t appear to be
true for Eric Holder; he seems as unyielding and free of self-reflection as
ever. So I was thinking about that.
You’ve probably heard the Thomas Edison quote, in which he
says, “I have not failed. I have just found 10,000 ways that won’t work.” Maybe
Eric Holder has that kind of attitude.
We feel strong having thwarted the assault on our rights
each of these times so far. But we are required to win 100% of the time; the
Constitution’s enemies only have to win once.
Great Wall of China Mr. Spherical Model took this photo in 2013 |
Think of the Constitution as a high wall protecting our
liberties—visualize the Great Wall of the Constitution. Eric Holder is among
the enemy Radical Socialist Hordes trying to invade. Picture Eric Holder, with
grappling hook and long rope in hand. He throws the hook time after time. Each
time, the metal hits the wall and falls to the ground. He picks it up and
throws it again. Nineteen times so far. But he’ll keep throwing. All he has to
do is throw it hard enough to catch one time. Then he can climb the rope,
secure it further, and allow one invader after another to follow him. And they
can bring additional ropes up, and secure them when they get to the top, so
more invaders can come at the same time.
The failed throws aren’t evidence that he’s a failure and
should stop trying; to him it is just part of the process of the invasion
effort.
The wall is vast. It’s hard to monitor every single span of
length. We don’t know where the enemy will try its throw without our awareness.
We just maintain the wall as best we can. Is it inevitable that the enemy will
breach the wall? Not necessarily. So far we’ve been blessed by people standing
up for their rights, which strengthens the wall. But fighting for justice is
expensive in time and treasure. We need to thank those who have taken on the
fight, and let them know we support them.
If there is any lesson in the balance in split cases, it is
that we absolutely need the next appointment to the Court to be a person who
loves and understands the Constitution, and the rights it was written to
protect.
No comments:
Post a Comment