Sources all of the ‘net have been citing the number of 5-4 cases as ’24.’ The problem with that, however, is that only 21 cases were decided on a 5-4 vote. If you take a look at the articles that I listed in my last post (here), nearly all of them suggest that 24 cases were decided on a 5-4 vote and 19 of those fell along ideological line. Mainstream media and blogs alike have taken this statistic to heart and have forgotten to think about how it got there.
In my opinion, this farce began with SCOTUSblog. They declare the number of cases as 24 in their Super Stat Pack (in which I am cited!!!!) and clearly cite Morse and Watters as cases in which they had to interpret the case so as to push it into the 5-4 column.
As you may recall, in Morse Justice Breyer joined the conservative block but did not join the majority opinion. The majority ruled on the highly-political free speech issue of the case but Justice Breyer opted only to join the judgement and hold that the principal’s qualified immunity did not make a free speech ruling necessary. Breyer ponders the free speech question and seems to have a slight inclination towards protecting free speech but concludes that the issue is not as simple as either side suggests and does not want to rule on the issue in this case. SCOTUSblog’s decision to call this a 5-4 ruling reeks of manipulating statistics to formulate a more startling conclusion. This marginally irresponsible action has been taken without question by other news sources. At best, this ‘judgement’ should be noted when it is taken into consideration and most journalist have failed to do that.
In Watters, Justice Thomas was forced to recuse himself because his son is or was an employee with Wachovia Bank. SCOTUSblog says:
We have decided that Watters is best classified with the 5-4s, as it seems quite likely that had all 9 justices participated, it would have come out this way.
I agree completely with that analysis, but again, they (and other news sources) fail to mention this fact when they cite the total number of 5-4 rulings as 24.
The final ‘judgement call’ came in Limtiaco v. Camacho. In that case, the Supreme Court held that Guam’s maximum level of indebtedness should be evaluated on assessed, not appraised, value. Here is the voting line:
Thomas, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and dissenting in part, in which Stevens, Ginsburg, and Alito, JJ., joined.
In the defense of SCOTUSblog and other sources, this is the closest to what could be considered a 5-4 decision. The concurring/dissenting opinion concurs with the court on procedural grounds but dissents on the crux of the case. In the case of Limtiaco, I could see this being called a 5-4.
So ultimately, major media sources have mislead a lot of people by adding a few extra cases to the already large number of 5-4 decisions. It’s hard to say why, or how they all came to the same conclusion, but their evaluation certainly produced interesting analysis. In fact, I think for certain analysis, it would be more appropriate to call these cases 5-4 decisions than to categorize them in other ways. It may only be a subtle affect, but reporting cases as more controversial than they actually are can have a serious effect on jurisprudence. Chief Justice Roberts as well as other members of the court have repeatedly held that the court has a compelling interest in ruling on cases as narrowly as possible. At times, it is appropriate and necessary for justices to rule on issues in a case that may not produce a headline-grabbing opinion. Such was the case in Morse and I think Justice Breyer had a brief fit of brilliance (and perhaps courage) in separating himself from his close friends with liberal tendencies. Categorizing his vote as simply another vote for the liberal block cheapens his contributions to jurisprudence as well as the restraint he showed in ruling on an issue that was neither the most exciting nor the most controversial. But as I said before, sometimes interesting analysis can be produced from a ‘judgement’ calls on data, media sources just need to make it clear how they got there.