While I will readily accept that my end-of-term comments are even less relevant than usual because they are so belligerently late, I still think I have a few interesting things to point out about the nearly-finished term.

First, and least controversially, Justice Kennedy still controls an important position in the middle of the Court. Justice Kennedy was the only justice to author not a single 9-0 opinion (Roberts 1, Stevens 1, Scalia 2, Souter 4, Thomas 4, Ginsburg 5, Breyer 6, Alito 5). He authored five 5-4 opinions (Bartlett, Iqbal, Caperton, Denedo, Ricci), one 6-3 opinion (Couer), and one 8-1 opinion (Negusie). As was well documented by SCOTUSblog, he cast fewer dissenting votes than any other justice, with only 6 dissenting votes in the entire term. The next closest was Scalia with 13 and the Chief Justice, Justice Thomas, and Justice Alito with 15 each. Justice Stevens topped the list with 28.

Second, the liberal members of the Court won as many victories as they could and also managed to taper several other opinions. On the issue of preemption, the conservatives lost twice and both times they were fairly clear-cut losses: early in the term with Altria and on the last day of the term with Cuomo. In Cuomo they found an unlikely ally in Justice Scalia to craft an unusual, though not inconceivable, majority of Justices Stevens, Scalia, Souter, Ginsburg, and Breyer. Another one of the more obvious victories is Caperton, which I think will produce an interesting set of guidelines on the state-level as different states grapple with the issue and devise ways to minimize the trauma tgatthiscase will wreak on their judicial systems. The opinion in Winters, while not a “liberal” victory, was fairly narrow and did not go as far as it could have gone in rejecting the federal government’s obligation to respect certain environmental boundaries.

For the liberal justices, I would call Northwest Austin Municipal Utility District v. Holder a victory. I think Congress will take a hint and reform Section 5 in a series of steps and the Court, while I doubt they will take on the issue while many of the current justices are sitting, will likely find that Congress did its best and grant it the deference that it deserves. Ricci, on the other hand, was a more significant setback. Still, the Court did not go as far as it could in attacking the bulk of the Title VII jurisprudence. It simply enforced a “strong-basis-in-evidence” standard that doesn’t seem so far removed from the burden that most governments impose on themselves already out of fear of litigation. Both NWAMUDNO and Ricci were saved by the Court’s not-so-sudden minimalist/incrementalist streak. In both cases there was, no doubt, very interesting insider baseball.

In both cases a single conservative member of the Court attacked a seemingly well-established precedent of the Court but no other member was willing to go so far. In NWAMUDNO, Justice Thomas refused to sign on to the Court’s effort to give Congress a chance to fix the VRA. While it’s difficult to say whether or not any other Justices are inclined to move in that direction, none of the others were willing to take that drastic step now.

In Ricci, Justice Scalia seemed to question the validity if the Courts entire field of disparate impact jurisprudence. No other Justice joined his concurring opinion, but his opinion, especially in light of Justice Thomas’ a week earlier, suggests that the Court’s normally well-coordinate conservative faction may be increasingly confident of it’s long-term viability.

Finally, it looks like the Court is becoming increasingly sensitive to the political environment around it. Caperton was an obvious acceptance of the role that politics and elections play in judicial decision-making and the broading of the constitutional right to a trial free of apparent bias is notable. In Ricci, Justice Alito authored a concurring opinion, joined by Justices Scalia and Thomas, pointing to the apparent bias of a Reverend in New Haven who had help Mayor DeStefano get elected. This marks the second time this term that the issue of politics influencing a court has come up. In Ricci only 3 judges bit on the politics issue but I think the issue may have traction as the Court begins to affirm more and more away from selectively applying past and towards creating entirely new lines of precedent.

My goal was to publish the final term statistics today, but because the Court will hear rearguments in Citzens United and likely issue an opinion before the beginning of OT09, I’ll have to update these statistics again in September.

I’ve updated the 2008 Term Case Index, which you can always find at the top of the page or here.

I’ve also posted a Term Count spreadsheet that features individual opinion authors and length of time stats.

.PDF
.XLS
.NUMBERS

…And a reformatted version of the same chart:

.PDF
.XLS
.NUMBERS

I’ve also uploaded a final-ish version of the Advocate Scorecard. For government attorneys, I included everyone who argued at least once from the Office of the Solicitor General and did not include any state-level officials except Barbara G. Underwood, who served as acting SG for the beginning of the Bush 43 Administration and Principle Deputy under Seth Waxman. I also put (AC) beside their case name if they argued as amicus curiae in the case. That usually means they split time with the party they supported and argued for 10-15 minutes. In some instances they argued in addition to full arguments by the parties (Edwin Kneedler arguing a 30-30-10 arrangement in Ricci) although in one instance they argued as amicus but actually argued the full 30-minutes in the place of a party (William Jay arguing in Harbison)

For private attorneys, I included any advocates who argued more than twice (if I missed any please correct me) and a few advocates who only argued once but are notable for other reasons (Jay Sekulow, Pamela Karlan, Andrew Frey, Kenneth Starr, and Kathleen Sullivan). Nearly all of the private attorneys will sound familiar to you if you’ve read this site over the last few months. Private attorneys don’t often argue as amicus and, although it does happen (Pac. Bell), none of the private attorneys I listed had argued as amicus in any case.

.PDF

.XLS

.NUMBERS

Enjoy!

In a surprise move, the Supreme Court decided to hold a new round of oral arguments in Citizens United focused on whether or not to overrule Austin v. Michigan. It’s very, very rare for the Court to hold rearguments in a case although they will periodically request additional briefing on an issue. In Montejo v. Jackson this term, the Court asked for additional briefs on whether or not to overrule Michigan v. Jackson (1986).

The Court will hear rearguments on September 9. Obviously, that means it will happen during OT 08 and a decision will be rendered before the start of oral arguments in October. OT 08 is not finished and, therefore, I can’t publish any truly final statistics until the end of September.

I’ve compiled a really interesting list featuring the win-loss record of every advocate from the SG’s office and all of the top private advocates. The list is necessarily incomplete but I wanted to give everyone sample of it before I publish the final version tomorrow afternoon when the remaining cases come out.

You can also appreciate the importance of the final three opinions, which will be released tomorrow, because 7 out of the 39 advocates (Kneedler, Stewart, Underwood, Olson, Waxman, Coleman, Meade) listed argued in one of the three cases and Malcolm Stewart actually argued in two (Citizens United and Cuomo).

I’ll have more to say about it on monday after I post the final version. Until then, enjoy:

Sample:

.PDF
.XLS
.NUMBERS

The Supreme Court will hand down the final three opinions of the term tomorrow when it holds its last public session before its summer recess. The Court will also bid farewell to Justice Souter, as it will likely be his last time being seen publicly as a sitting justice. The three cases are Ricci v. DeStefano (affirmative action – firefighters from New Haven), Citizens United v. Federal Election Commission (campaign finance – Hillary: the Movie), and Cuomo v. Clearing House Association (Preemption – National Bank Act).

I’ve updated an up-to-date term chart for you convenience as you prepare for the final opinions of the term.

Note: Justice Kennedy has only issued 6 majority opinions. Justices Ginsburg and Alito have both issued only 7 each. My educated guess says that Justice Kennedy will author a 5-4 majority in Ricci, Justice Ginsburg with author Cuomo, and Justice Alito will author Citizens United.

The Congressional Research Service has published an interesting collection of Judge Sotomayor’s past opinions from the Second Circuit. They come to the conclusion that she is hard to categorize but that she generally has fairly rigid adherence to precedent. [h/t How Appealing]

The Caucus has an interesting post about a series of unlikely events 20 years ago that pitted John Roberts against Michael Jackson. You can find the post here.

By now, you should all know that the Supreme Court handed down their long-awaited decision in Northwest Austin Municipal Utility District No. 1 v. Holder. In short, the Chief Justice Roberts wrote for a nearly unanimous court holding that Section 5 was bad and faced several constitutional problems, but the Court decided to give Congress one chance to fix it. What that means is that Congress has to take some action, likely within the next few years, to repair some fatal flaws in Section 5 and they will likely be able to salvage one of the most important parts of the act.

The structure of the opinion is fairly interesting. Section I A presents a fairly sympathetic timeline of events leading up to the reauthorization of the pre-clearance requirement in 2006. Section I B mentions a brief history of the MUD district and the decision below, which held that the district wasn’t a “political subdivision.”

Section II is devoted almost solely to discussing the flaws in Section 5 of the VRA. After starting with a brief ode to the “undeniable” “historical accomplishments” of the VRA, noting that the Act now requires a heightened level of justification in-part because of its widespread success over the last 40 years. Chief Justice Roberts then thrashed the act for a slew of problems before eventually avoiding the constitutional issue.

One of the biggest questions this case presents is about why the traditionally liberal Justices, presumably supporters of Section 5 at its core, issued no clarifying concurring opinion about Section 5. There is a chance, and I think a very good one, that those judges hoped to send a unified message to Congress by joining only the Chief Justice’s majority opinion. If they had penned a four-Justice opinion concurring in judgement, there would be an increased chance that Congress would not heed the warning of the Court. The liberal Justices may see this nearly unanimous opinion as their best way of ensuring that Congress takes the Court’s warning seriously enough to make changes that will withstand review several years from now.

The Chief Justice penned an opinion that will make Judicial minimalists swoon. On its face, the opinion reads like a textbook example of judicial restraint (excuse the imprecise term) and the Chief Justice claims to move only as far as necessary to dispose of the case at hand. 30-years from now, if the Chief Justice’s lasting legacy is one of minimalism and incrementalism, this opinion will likely be one of his most famous. On the other hand, this may prove to be the calm-before-the-storm if the Court revisits Section 5 in the next few years and fulfills its promise to evaluate the section on its core constitutional issue.

Analysts have frequently brought up comparisons to Palm County Board of Commissioners and Bush v. Gore. After the Florida election fiasco in 2000, the Supreme Court issued a per curiam opinion telling the Florida Supreme Court, in effect, that it needed to reconsider some of its procedural findings or the Court would be forced to step in and intervene. The Florida Supreme Court didn’t take the hint and the Supreme Court then issued what is now considered to be one of the most politically-charged opinions of all-time.

Regardless of the path the courts and Congress take as a result of this opinion, one thing is certain: the Court’s opinion in NWAMUDNO represents a very serious warning to Congress. The Robert’s Court has not been unwilling to tackle very serious Constitutional questions such as the scope of the Second Amendment (Heller), privacy (Carhart), and the death penalty (Kennedy, Baze), and questions of race have been no exception (Parents Involved, Ricci). It will be interesting to see how seriously Congress deals with the issue and when, not if, the Court decides to revisit this issue at it’s core.

The Court’s decision in Northwest Austin Municipal Utility District No. 1 v. Holder largely dodged the core constitutional issue in question and has forced me to wonder how the Court will handle a different, though similarly charged, issue in Ricci v. DeStefano. To refresh everyone on the facts in Ricci, a group of white firefighters was denied a promotion after a city decided that not enough black firefighters were eligible for promotion based on the results of a civil service exam.

The two opinions were written almost simultaneously and it would be difficult to imagine that each case wasn’t decided with the other in mind. In NWAMUDNO, the Court decided to punt on the most important issue, in Ricci, it will be much harder to avoid the core issues. Its hard to make any sort of prediction about what the VRA decision means for Ricci, but I think with the benefit of hindsight we will be able to compare the two opinions and come to some sort of understanding about the interplay between the two.

We first have to make some assumptions about the NWAMUDNO decision. Several scenarios may have played out in order to create the bizarrely unanimous criticism of the VRA but lets assume one of the most salacious. Justice Kennedy is initially the only Justice who wants to punt on the issue. Chief Justice Roberts shivers at the sight of a 4-4-1 opinion and decides to write the decision that would eventually be published to avoid forcing Justice Kennedy to sit down and decide the opinion “doesn’t write” and flipping to the liberal justices.

If Justice Kennedy really was the first, and still the only, Justice who truly wanted to punt, I think that would bode poorly for the city. The decision in NWAMUDNO was made only out of deference for a co-equal interpreter of the Constitution and I think the Court would not burden itself with that level of respect for a local civil service board mired in base racial politics. The court could be sending a very strong political message in Ricci about how comfortable it is with racial politics and further hint to Congress to get it’s act together.

If the Chief Justice, Justices Scalia, Kennedy, and Alito all wanted to punt on the issue and return it to Congress for further changes, the four liberal justices likely joined that opinion to send a message to Congress that they needed to change Section 5. There would have been five votes in favor of remanding regardless and the liberal justices knew a dissent from that would have been in vain.

I’ve updated the Term Case Index and the Term Count Spreadsheet.

With the release of three opinions today, the Court now has only seven cases left to decide. It will hand down some on Thursday and the final opinions next Monday. Of the remaining cases, the two attracting the most media attention are Safford Unified School Dist. #1 v. Redding (strip-search of a 13-year old girl) and Ricci v. DeStefano (affirmative action regarding firefighter’s promotions).