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.

SCOTUS Voting Patterns 2012-2013, Part II

In our last post, there was only room to deal with the overall mass of data. Today we’ll pare it down a bit, to see if that leads to any further insights. Data comes from the Supreme Court website, slip opinions.

I decided to make an assumption, that when the court is in agreement (unanimous, or all majority and concurring), those cases deal with technicalities of the law, rather than political ideology. I don’t know if that is true, but I thought it would be worth looking at only the cases in which there is disagreement. Of the 74 cases, 35 cases were full agreement cases. That left 39 cases to look at for patterns of disagreement.

In this chart, dissent (minority opinion) is in green; majority and concurring opinions are in red. The light blue shows individual abstentions. There’s still a pretty good sea of agreement, but it’s much more balanced between agreement and dissent than when the unanimous cases are included.

 

This is admittedly a broad brush. Concurring opinions may mean there’s agreement with the direction of the judgment, but for different reasoning. Sometimes there is agreement with exceptions, or agreement only on specific points. The Missouri v. McNeely case was particularly mixed, with various combinations of agreement and dissent on various points. Here’s how the decision is summarized:

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, J.J., joined, and opinion with respect to Parts II-C and III, in which SCALIA, GINSBURG, and KAGAN, J.J., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C.J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, J.J., joined. THOMAS, J., filed a dissenting opinion.

I took this oddity into consideration when counting dissent and majority opinions, with several of the justices getting half a count each way on this particular case. The chart below, similar to the one in Monday's post, deals with just the 39 cases in which there was disagreement. Majority and concurring opinions are combined, in yellow; dissents are in green, abstentions are light blue. Then I look at the ratios in which each justice joins with the conservative bloc and the liberal bloc.

To review, a bloc requires at least three of the like-minded justices voting together; when either side was two/two on a case, Kennedy would determine whether there was a bloc vote. I show both the ratio (number of times voting with the bloc over the total number of cases) and the percentage of voting with the bloc.

 

From this we can look at who most frequently agrees and disagrees. I thought it might help to rate them by percentage. 

Justice	%w/C bloc	C Rating		Justice	% w/L bloc	L Rating
Roberts	92.3%	1		Kagan	97.4%	1
Alito	81.6%	2		Ginsburg	92.3%	2
Thomas	76.9%	3		Breyer	89.7%	3
Scalia	76.9%	3		Sotomayor	89.2%	4
Kennedy	74.9%	5		Kennedy	48.7%	5
Breyer	41.0%	6		Roberts	41.0%	6
Kagan	28.9%	7		Scalia	41.0%	6
Sotomayor	27.0%	8		Alito	26.3%	8
Ginsburg	25.6%	9		Thomas	25.6%	9

Kennedy, as you’d expect, is rated in the middle with both blocs. It does appear that the liberal bloc is more solid: all four vote with the bloc better than 89% of the time. Only Roberts is that connected to the conservative bloc. But Roberts isn’t as disconnected from the liberal bloc as the liberals are from the conservatives. Breyer is equally connected to the opposite bloc as Roberts is. But Kagan, Sotomayor, and Ginsburg are connected to the conservative bloc well under 30% of the time. Only Thomas and Alito are that disconnected from the liberal bloc, but they are also much less connected to their own bloc. In other words, Thomas especially, and also to some extent Alito, vote the way they think regardless of the opinions of colleagues.

We haven’t yet looked at how many of the 39 cases are close decisions, and how many were less narrow rulings. Nor have we looked at individual differences on some specific cases. So there's enough for next time, in Part III.

SCOTUS Voting Patterns 2012-2013

I’ve finally gathered enough data to take an overall look at this past Supreme Court session. The question I’m looking at concerns cohesiveness vs. division on the court. How much agreement overall, and how much ideological division? The data may not answer the specific questions we have about ideology, but it’s an interesting piece of data.

There were 79 cases in the session; five were per curiam, so in the overall count I have eliminated those and dealt with the remaining 74 cases. Of those, 35 are essentially unanimous (some are listed as unanimous; some are unanimous with concurring opinions; some are listed as majority with concurring, but no dissents.) The probability is that those cases are mainly non-political, and just technical issues of law. I may take another look at the data later, removing the unanimous cases. But with those included, there is quite a lot of agreement on the court.

The photo is the draft I printed out after organizing the actual votes. Blue means majority, concurring, and unanimous opinions. Yellow is dissent. Orange is abstaining (recusal of a justice on a particular case). You can see there is a sea of blue.

 

Last time I did a piece like this (April 2012), it was relatively early in the session, to see if there was possibly any predictive information prior to the Obamacare ruling. The data was small enough not to be unwieldy. While I have the database of all the votes for this year’s session, I haven’t got a way to condense it to be looked at in this blog. So I’m only presenting the sub-database concerning how often each voted with the majority (including concurring opinions, which means agreement with the ruling but for different reasoning), how many dissents. And from that we can also see connection to voting blocks.

The conservative voting bloc is Thomas, Scalia, Alito and Roberts, with sometimes Kennedy. The liberal voting bloc is Kagan, Sotomayor, Breyer, Ginsburg, and sometimes Kennedy. If there was a bloc on a case, that meant there were at least three of the bloc voting together (either with the majority or the dissent). When a bloc was two-two, Kennedy determined whether to consider whether a bloc existed. Note that it is possible on a case for a justice to be either with both blocs or against both blocs.

 

I don’t know whether we can say what this all means. But there are probably a few observations we can make from this data, so we’ll that in the next post.