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.