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.

Related posts

• Supreme Introductions (December 20, 2008)
• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Kennedy v. Louisiana Closed (October 6, 2008)

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.

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…And a reformatted version of the same chart:

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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.

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Enjoy!

Related posts

• Time to Update the Resume (April 29, 2009)
• Advocate Scorecard: Win-Loss Record for the Top Advocates (June 28, 2009)
• Advocate Scorecard (April 18, 2009)

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.

Related posts

• The Weeks Ahead (April 12, 2009)
• Supreme Court Oral Argument Tussle Gets Serious (October 11, 2008)
• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

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:

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Related posts

• Time to Update the Resume (April 29, 2009)
• Nearly Final Term Statistics and Advocate Scorecard (June 29, 2009)
• Advocate Scorecard (April 18, 2009)

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.

Related posts

• The Upcoming Weeks (May 16, 2009)
• Walter Dellinger Discusses the End of the Term (June 22, 2009)
• Upcoming Cases to Watch (June 17, 2009)

Related posts

• Judge Sotomayor: Why Her? (May 26, 2009)
• Yankee Justice (May 26, 2009)
• Upcoming Cases to Watch (June 17, 2009)

Related posts

• Who Is The Funniest Justice? (November 10, 2007)
• Which Justice Is The Most Talkative? (November 8, 2007)
• Updated Humor Statistics (March 7, 2008)

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.

Related posts

• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)
• Supreme Court Releases Opinions in Pearson, Fitzgerald, Locke, and Waddington (January 21, 2009)

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.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Upcoming Weeks (May 16, 2009)
• State of the Docket (May 26, 2009)

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).

Related posts

• Released Opinion Statistics (April 29, 2009)
• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)
• Which Justice Is The Most Talkative? (November 8, 2007)

His letter to Dahlia Lithwick and Linda Greenhouse is an interesting summary of the many issues at play in the final week of the OT08. This entry came across to me as particularly interesting:

The most important cases naturally gravitate to the end of the term because justices drafting the majority and dissenting opinions in those cases apparently feel compelled to keep revising and rewriting in response to one another’s revised counterarguments up until the final days of the term. (This explains why some of the most interesting points are often in footnotes, the preferred venue for last-minute volleys.)

We know that the most important cases usually come down in the final weeks of a term (recent exceptions would include Gonzales v. Carhart (April 18, 2007), Medellin v. Texas (March 25, 2008), Baze v. Rees (April 16, 2008)). I thought his insight into the importance of last minute footnotes was interest. Be prepared to take a crack at some footnotes in the cases that will come out later today.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Upcoming Weeks (May 16, 2009)
• The Final Opinions (June 27, 2009)

Justice Thomas was the author of another 5-4 decision in Gross v. FBL Financial Services. For some reason, I had always assumed that he filed a slightly below average number of 5-4 opinions every year. This is his second of OT08, he filed one last year, and two the year before. From OT06 to now, there have been a total of 37 5-4 opinions and 13 of those were written by Justice Kennedy (35%).

Amongst the other Justices then, writing 5 of the remaining 24 isn’t too bad. That number is skewed upwards because the ‘conservative’ judges have been writing so many more majority than their liberal counterparts. In fact, in OT06, there were 21 5-4 decisions and 6 fell with the normal ‘liberal’ justices. Justice Stevens wrote four of those majorities and Justices Kennedy and Breyer each wrote one.

In OT06, he was the third most prolific writer (including concurring opinions and dissents) but that has a lot to do with the slew of one- and two-page concurring and dissenting opinions he writes.

The Court now has 10 opinions remaining. They will sit again on Monday to announce more opinions.

Related posts

• Which Justice Is The Most Talkative? (November 8, 2007)
• Updates (December 4, 2007)
• Supreme Introductions (December 20, 2008)