Notably, Barbara McDowell, who passed away in 2009 as the director of appellate advocacy for the Legal Aid Society of the District of Columbia, argued 18 times before the Court and served as an Assistant to the Solicitor General. Beth Brinkmann currently serves as Deputy Assistant Attorney General, although that position that will not get her before the Supreme Court for oral arguments. Elena Kagan had 6 appearances before the Supreme Court before she became an Associate Justice.

Many of the advocates listed above argued the vast majority of their cases as members of the Office of the Solicitor General. That trend is generally true throughout the elite-tiers of the Supreme Court bar—Tom Goldstein is the only truly elite Supreme Court advocate without any experience in the OSG—and the trend appears to be just as strong among its female members. Among the advocates listed above, only Karlan and Sullivan have never argued on behalf of the federal government. Other advocates argued several cases while in the Office of the Solicitor General, but later argued again in other positions. For example, Millett’s five most recent arguments have occurred during her time in private practice and Underwood’s four most recent appearances have been in her position as Solicitor General of New York. Notably, Maureen Mahoney and Barbara Underwood have both served as Principal Deputy Solicitors General and Leondra Kruger temporarily served in that position just last year.

If I’ve made any mistakes with the above tally, please send me an email at kedar@dailywrit.com.

If you want to download individual cases, I’ve compiled a link to the mp3s of every case. Click blow the fold to see more.

• Douglas v. Independent Living Center
• Reynolds v. United States
• Howes v. Fields
• Maples v. Thomas
• Martinez v. Ryan
• Golan v. Holder
• Hosanna-Tabor Evangelical Lutheran Church v. EEOC
• Pacific Operators Offshore v. Valladolid
• Greene v. Fisher
• CompuCredit Corp. v. Wanda Greenwood
• Florence v. Board of Chosen Freeholders
• Judulang v. Holder
• Lafler v. Cooper
• Missouri v. Frye
• Rehberg v. Paulk
• Minneci v. Pollard
• Perry v. New Hampshire
• Gonzalez v. Thaler
• Zivotofsky v. Clinton
• Kawashima v. Holder
• Smith v. Cain
• United States v. Jones
• Kurns v. Railroad Friction Products Corp.
• National Meat Association v. Harris
• First American Financial v. Edwards
• Mims v. Arrow Financial Services
• Hall v. United States
• Credit Suisse Securities v. Simmonds
• Setser v. United States
• Federal Aviation Administration v. Cooper
• Messerschmidt v. Millender
• Caraco Pharmaceutical Laboratories v. Novo Nordisk A/S
• Martel v. Clair
• Williams v. Illinois
• Mayo Collaborative Services v. Prometheus Labs
• PPL Montana v. Montana
• Sackett v. Environmental Protection Agency
• Kappos v. Hyatt
• Perry v. Perez
• Knox v. Service Employees International Union
• Federal Communications Commission v. Fox
• Coleman v. Court of Appeals of Maryland
• Roberts v. Sea-Land Services
• Filarsky v. Delia
• United States v. Home Concrete & Supply
• Vartelas v. Holder
• Holder v. Gutierrez
• Taniguchi v. Kan Pacific Saipan
• Freeman v. Quicken Loans, Inc.
• Blueford v. Arkansas
• United States v. Alvarez
• Wood v. Milyard
• Elgin v. Department of Treasury
• Kiobel v. Royal Dutch Petroleum
• Mohamad v. Palestinian Authority et al.
• Armour v. Indianapolis
• Astrue v. Capato
• Southern Union Co. v. United States
• Miller v. Alabama
• Jackson v. Hobbs
• Vasquez v. United States
• Reichle v. Howards
• Department of Health and Human Services v. Florida (Anti-Injunction Act)
• Department of Health and Human Services v. Florida (Minimum Coverage Provision)
• National Federation of Independent Business v. Sebelius (Severability)
• Florida v. Department of Health and Human Services (Medicaid Provision)
• Christopher v. SmithKline Beecham Corp.
• Dorsey v. United States
• Salazar v. Ramah Navajo Chapter
• RadLAX Gateway Hotel v. Amalgamated Bank
• Match-E-Be-Nash-She-Wish Band v. Patchak
• Arizona v. United States

Readers of this website might fight Part II, which begins on page 23, especially interesting. In that section, I demonstrate that the Alien Tort Statute is an atheoretical compromise between several conflicting strands of federal civil procedure. I discuss how the Court’s opinion in Sosa v. Alvarez-Machain (2004) did more to upset law in this area than to settle it because the opinion did not properly explain how the Alien Tort Statute fits into existing law surrounding Erie and the presumption against implied causes of action. Without clarity on those important issues, lower courts have struggled to build on the Supreme Court’s new framework.

The confusion regarding corporate liability and aiding and abetting liability are symptomatic of the Court’s atheoretical compromise. Litigation in Kiobel v. Royal Dutch Petroleum Co. has been a mess—the lower court decision was criticized for both its substantive outcome and its methodology—but litigation in Mohammed v. PLO demonstrates how easy it can be to litigate similar claims when Congress steps in to define those claims with a level of clarity that courts can never achieve.

The article won the W. Richard Smith Founder’s Award for Writing Excellence for the Best Comment, and it is forthcoming in the Emory International Law Review (2013). The abstract is copied below the fold.

The Alien Tort Statute is a remarkable provision. This thirty-three word statute lay dormant for nearly two centuries but now allows federal courts to hear claims for violations of the law of nations stemming from behavior anywhere in the world. Such an extraordinary interpretation was far from inevitable and remains on unsteady footing.

This article argues that the Statute should be read as purely jurisdictional, rather than as a hybrid provision granting both jurisdiction and a cause of action. In contrast to the current hybrid model, a strictly jurisdictional view of the Alien Tort Statute would provide a manageable framework for expanding the scope of the statute. Rather than requiring courts to first measure the specificity of international law and then gauge the practical consequences of recognizing a new cause of action, the jurisdictional view would require Congress to make those difficult, complex, and weighty policy decisions. A purely jurisdictional view of the statute adheres more closely to well-established views toward federal common law and also patches many of the problems that have arisen in applying the statute.

I hope you all enjoy the article!

Last month we filed a merits-stage amicus brief in Christopher v. SmithKline Beecham Corp., which you can find here. In December we filed a cert.-stage amicus brief in Standard Investment Chartered v. NASD, which you can find here.

I certainly am not posting these to distribute these briefs more widely, but instead I am posting these only to partially explain my relative absence from the internet. Oh, then there is the law review thing.

As you all have no doubt noticed, the Court has been releasing opinions at a blistering pace during the first half of October Term 2011. During the Roberts Court, the Court has not released more than 19 merits opinions by the end of the January sitting. This year, however, the Court released 21, including a blockbuster (U.S. v. Jones) and a mid-major (Perez v. Perry). The Court is likely to release another mid-major, Florence v. Board of Freeholders, during the February or March sittings.

With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. One Justice, however, has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising–the Court has disposed of nearly a quarter of the cases it will likely decide during OT11 and Justice Kennedy is nowhere to be seen. On the other hand, he tends to write most frequently in high-profile, divided cases and therefore it takes more time for the Court to produce his opinions. Ultimately, however, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.

Justice	Total Opinions
Scalia	8
Ginsburg	7
Thomas	4
Sotomayor	4
Breyer	3
Alito	3
Kagan	3
Roberts	2
Kennedy	0

Despite his silence up to this point in the term, I have little doubt that Justice Kennedy will leave his mark on the term by the end of June. With so many landmark decisions pending, it seems likely that Justice Kennedy with write more than a few noteworthy majority, concurring, and dissenting opinions. He has also traditionally written a low number of total opinions–last year only Chief Justice Roberts and Justice Kagan authored fewer total opinions. I suspect that we will see a similar trend during the current term. But when Justice Kennedy writes an opinion, he certainly makes it count for something.

Predicting which cases the Court will hear during the April sitting is more of an art than a science. This year we are aided by the early release of the March calendar, which occasionally comes out as late as the end of the January sitting (OT07, OT08). Recently, however, the Court has published the February and March calendars sometime in December (OT10, OT11).

We can also look at recent trends in the number of cases heard during the April sitting. The Court has heard fewer cases in the last few years than it had during years before. You can see the tally’s going back to OT03 below:

You can see the trend as a bar chart as well:
 

The recent trend suggests that the Court will once again aim to hear 8-10 cases in April. An April sitting with 8 cases would also leave the Court with 75 cases set for oral argument (counting the healthcare cases as one case). In recent years, the Court has heard around the same number of merits cases.

Another common signal used to predict the April cases is the presence of an expedited briefing schedule. Occasionally, the Court will order a case placed on an expedited schedule in order to accommodate arguments earlier than the normal schedule would allow. That happens both in extraordinary cases that need to be rush – like Perry v. Perez this year – and in cases that need to be squeezed into the term. January grants are often the subject of such expedited schedules, but none of the grants from the past two weeks have received such treatment.

One way for the Supreme Court to move cases along without upsetting the formal briefing schedule is to announce granted cases immediately following a conference and announce denied cases in the traditional Monday order list (OT09, OT10, OT11). The Court has used this procedure for each of the cases granted in January, a signal that it is at least considering whether or not to hear those cases in April. The Court did not follow the same procedure during OT10; it announced grants and denials in its normal order list and still managed to hear some of those cases during the April sitting.

The Cour may also consider its general workload for the term when scheduling cases for April. It has a number of important cases to decide before the end of June and many of those will require more judicial resources than the average case. If the Court were concerned about the length and difficulty of those cases, it may opt to hear fewer cases in the April sitting in order to devote more time to the difficult cases.

To date, the Court has ten cases that have been granted but not scheduled for oral arguments. Five of those were granted in December and will almost certainly make it onto the April argument calendar(Christopher v. SmithKline Beecham, Dorsey v. U.S., RadLAX v. Amalgamated, Arizona v. U.S., and Match-E-Be-Nash-She-Wish Band v. Patchak). Of the remaining five, the ones that were granted in the past two weeks, two were granted at the first January conference (Salazar v. Ramah Navajo Chapter and Florida v. Jardines) and three were granted last week (Kloeckner v. Solis, U.S. v. Bornes, and Cavazos v. Williams). The Court generally schedules cases for oral arguments in the order in which they were granted, but it does not follow the order of grants strictly.

In the past, the April calendar has been released in late-January or early-Februry. Here are the dates over the past few years:

Ultimately then, its hard to predict exactly which cases will be heard in April and when we’ll know, but I predict that we’ll find out mid-way through the February sitting that the Court will hear eight cases: all five that were granted in December, both of the January 6 grants, and one (possibly two) of January 13 grants.

Of course, the standard prediction disclaimers apply. I’m just as likely to be wrong as I am to be right, so plan accordingly.

CompuCredit v. Greenwood, a case centering around arbitration clauses, is especially interested. In an opinion written by Justice Scalia, the Supreme Court somewhat predictably upheld an arbitration agreement and read the Credit Repair Organizations Act’s nonwavier provision narrowly enough to allow the Federal Arbitration Act’s presumption of enforceability to prevail. At this point, Supreme Court opinions upholding arbitration clauses almost feel pro forma. Justice Ginsburg dissented.

Justice Ginsburg also provided the lone dissenting vote in Minneci v. Pollard. Over the past ten years, Justice Ginsburg has only provided the lone dissenting vote about once every other term (.5 times per year), so it was especially surprising to see her do it twice in one day. During the Roberts Court, there have been an average of 7.4 8-1 decisions per year, making today’s barrage of 8-1 opinions even more surprising.

Several high-profile advocates are back in action during the January sitting. Gregory Garre leads all attorneys in private practice with his fourth argument of the term in United States v. Home Concrete & Supply and Solicitor General Donald Verrilli matches him with his fourth argument of the term in FCC v. Fox.

Paul Clement argues his third case of the term in Perry v. Perez this afternoon. Carter Philips and Assistant to the Solicitor General Nicole Saharsky also argue their third cases of the term in FCC v. Fox and Filarsky v. Delia, respectively.

Deputy Solicitor General Malcolm Stewart, who was notably absent from the podium during the first three months of the term, will argue in two cases during the January sitting: Sackett v. EPA and United States v. Home Concrete & Supply.

• Red Flag: “In cases and administrative decisions, a red flag warns that the case or administrative decision is no longer good law for at least one of the points of law it contains.”
• Yellow Flag: “In cases and administrative decisions, a yellow flag warns that the case or administrative decision has some negative history but hasn’t been reversed or overruled.”
• Blue H: “In cases and administrative decisions, a blue H indicates that the case or administrative decision has some history.”
• Green H: “In cases and administrative decisions, a green C indicates that the case or administrative decision has citing references but no direct history or negative citing references.”

The common perception is that, for whatever reason, WestLaw gives yellow flags to a disproportionate number of cases. I thought I’d look at cases from OT10, most of which were decided in the last twelve months.

October Term 2010 Merits Cases

As it turns out, WestLaw actually does give out yellow flags to a large percentage of cases. Considering that these cases were decided by the highest court in the land within the last twelve months, it is pretty remarkable that so many of them already have “some negative history.” Go figure.

My next step is to look at cases from OT08 and OT09 to see how the trend shifts over time. I’d also like to look at the cases that cast doubt upon Supreme Court cases to see where they arise and to find the average length of time between a Supreme Court opinion and its first diminishing case.

I don’t have a strong view on that matter, but I thought it would be helpful to read the memo itself to divine an answer. If you want to read it yourself, you can find it here.

Rehnquist opens the most substantive portion of the memo with an argument that looks familiar to constitutional scholars today:

In these cases now before the Court, the Court is, as [John] Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction.

It ends on an interesting note that also displays his matter-of-fact style mixed with a hint of flair that would become a hallmark of his thirty-three year tenure on the Court:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagyes, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Statios, it just as surely did not enact Myrddahl’s American Dilemna.

After reading the memo, I get the impression that it truly reflected his views. The style is clearly personal and the informal tone makes it seem more likely that Rehnquist was free to write what he truly felt. That said, its hard to glean anything from a two-page memo. Consider this mystery unsolved.

Over the past few years, the Court has heard 8-10 cases during the April sitting, so the Court is expected to grant 3-5 cases in January with an eye towards hearing them during this Term. The presence of so many high-profile cases late in the Term–Perry v. Perez, Florida v. DHHS, and Arizona v. US–could lead the Court to hear fewer cases in April than it would otherwise.

Luckily, the Court will have five-star help from the parties. The three advocates who will argue in that case–Paul Clement, Gregory Garre, and Edwin Kneedler–have a combined 200 arguments before the Supreme Court. Kneedler has 113, Clement has 54, and Garre has 33.

Star-studded oral arguments have become more and more common in recent years as the Supreme Court bar eats up an increasingly high percentage of cases. On the same day the Court hears PPL Montana it will also hear from another set of high-profile advocates in Mayo Collaborative Services v. Prometheus Lab. The advocates in that case–Stephen Shapiro, Donald Verilli, and Richard Bress–all qualify as “expert” Supreme Court litigators under Richard Lazarus’s definition of the term and combine for 50 total arguments (Shapiro (29), Verilli (14), Bress (7)).

In all, the six advocates arguing on Wednesday, December 7 will have a total of 250 arguments between them. What a remarkable day at the Court!

Well, friendship with a Supreme Court justice has its perks. This week, the Supreme Court appointed Miguel Estrada to defend the decision below in Hill v. United States. Since appointed amici are chosen by the Circuit Justice for the circuit from which a case arose, Justice Kagan was likely tasked with finding an amici to appoint. This was her first appointment.

(H/T to Michelle Olson at Appellate Daily)

On November 18, the Supreme Court invited H. Bartow Farr to brief and argue an important point of law in the Healthcare Cases: that the minimum care provision of the Affordable Care Act is severable from the rest of the statute. Although Farr may be among the least well-known advocates arguing in the Healthcare cases, he has long held a sterling reputation within the Supreme Court Bar. I’ve created a brief profile of Farr to show he achieved such an impressive reputation at the Court and within the bar.

A few years after he completed his clerkship with then-Justice Rehnquist, Farr was hired as an Assistant to the Solicitor General and served for a standard two-year stint from 1976 to 1978. He argued five cases during his time there, including four cases revolving around Indian law.

In 1981, soon after leaving the Office of the Solicitor General, Farr joined with Joe Onek and Joel Klein to start Onek, Klein & Farr. The firm specialized in complex and appellate litigation and eventually developed an impressive reputation for Supreme Court litigation. Notably, this firm predated Rex Lee’s move to Sidley Austin to begin the first major private Supreme Court practice of the modern era. In 1991, the firm split and Farr joined Paul Smith and Richard Taranto to form Klein, Farr, Smith & Taranto. The firm eventually became Farr & Taranto when Smith left for Jenner & Block and Joel Klein left for the Department of Justice. Name partner Richard Taranto was recently nominated to Court of Appeals for the Federal Circuit, leaving the firm’s future in limbo.

A complete list of his oral arguments at the Supreme Court follows:

• 1. Rosebud Sioux Tribe v. Kneip (1977) (as Assistant to the Solicitor General)
• 2. Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. (1977) (as Assistant to the Solicitor General)
• 3. Simpson v. U.S. (1978) (as Assistant to the Solicitor General)
• 4. Oliphant v. Suquamish Indian Tribe (1978) (as Assistant to the Solicitor General)
• 5. U.S. v. John (1978) (as Assistant to the Solicitor General)
• 6. Pennhurst St. School & Hosp. v. Halderman (1984)
• 7. Pennhurst St. School & Hosp. v. Halderman (1984) (reargued)
• 8. Zauderer v. Office of Disciplinary Councel of the Supreme Court of Ohio (1985)
• 9. Hooper v. Bernalillo County Assessor (1985)
• 10. City of New York v. FCC (1988)
• 11. Liljeberg v. Health Servs. Acquisition Corp. (1988)
• 12. Liljeberg v. Health Servs. Acquisition Corp. (1988) (reargued)
• 13. Brown-Ferris Indus. of Vermont v. Kelco Disposal (1989)
• 14. Missouri v. Jenkins (1990)
• 15. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990)
• 16. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990) (reargued)
• 17. Ford Motor Credit Co. v. Dep’t of Revenue, State of Fl. (1991)
• 18. Masson v. New Yorker Magazine (1991)
• 19. Cipollone v. Liggett Group, (1992)
• 20. Cipollone v. Liggett Group, (1992) (reargued)
• 21. Turner Broad. System v. FCC (1994)
• 22. Allied-Bruce Terminix Co. v. Dobson (1995)
• 23. Turner Broad. System v. FCC (1997)
• 24. El Paso Natural Gas Co. v. Neztsosie (1999)
• 25. PGA Tour v. Martin (2001)
• 26. California Franchise Tax Bd. v. Hyatt (2003)
• 27. Olympic Airways v. Husain (2004)
• 28. Long Island Care at Home v. Coke (2007)
• 29. New Jersey v. Delaware (2008)
• 30. U.S. v. Eurodif S.A. (2009)

Ordinarily, appointed amici are chosen by the Justice who oversees the circuit from which the case arrises–which would suggest that Farr was chosen by Justice Thomas–but the scope of this case means that other Justices may have weighed in. On the other hand, the assignment may have been given to Justice Thomas, who in turn decided to appoint two experienced advocates because they would simply be more likely to brief and argue the case at the highest level.

This will be Garre’s second time arguing twice during a given sitting; he did the same thing during the April 2010 session when he argued in both Christian Legal Society v. Martinez and Monsanto v. Geertson Seed Farms. You can see a complete list of the advocates who have argued twice during a given sitting since 2003 here.

It will be interesting to see how the parties in Kiobel v. Royal Dutch Petroleum try to fit their arguments into the CIL framework that the Supreme Court adopted in Sosa v. Alvarez-Machain. Petitioners have been granted an extension and their brief will now be due on December 14, with amicus briefs due one week later. Respondents have retained veteran Supreme Court litigator and Quinn Emmanuel named-partner Kathleen Sullivan to argue their case. Their brief is due on January 27, 2012. The case will likely be argued during the February sitting.

The cert. petition could provide some insight into the Petitioner’s litigation strategy on the merits. The most compelling argument they make on the merits in their petition is that domestic law provides the framework for providing relief for crimes that are cognizable under the Alien Tort Statute, rendering complex CIL analysis irrelevant. That is certainly going to be the best way of arguing this case, and I hope it is an argument they fully pursue on the merits.

As a broad matter, however, I think the Alien Tort Statute is best read as a purely jurisdictional provision. I don’t have many adherent’s on this point, however, but Judge Bork’s concurring opinion in Tel-Oren v. PLO and Justice Scalia’s concurring opinion in Sosa v. Alvarez-Machain are about as close as any judges have come to siding with me. Court’s across the country have been clumsily trying to craft causes of action out of international law and, while I hope they are qualified to make those calls, most courts remain ill-equipped to make those decisions. The fact that so many courts have butchered their analysis of international law makes Judge Bork’s political question argument seem all the more poignant. Informed, thoughtful, consistent analysis would pose a significant threat to Congress’ ability to formulate foreign policy but analysis that lacks those fundamental characteristics poses an even greater threat to Congress’ authority.

It will be interesting to see how the Petitioners in Kiobel frame their arguments. My guess is that they will try to find ways to avoid clumsy CIL analysis and instead argue that corporate liability is a question of domestic law. We’ll know for sure in mid-December.

Earlier this year the Stanford Law Review published an interesting note by Brian P. Goldman titled “Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?” In the article, Goldman argues the Supreme Court should limit the instances in which it appoints amici for a variety of compelling reasons, not least of which is that appointing amici can take control of litigation away from the parties to litigation.

The idea of appointing amici should ask us to consider the extent to which we believe in the adversarial system in the Supreme Court. Over the years, regular amici, as well as appointed amici, have taken an increasingly central role in shaping litigation. As a result, the Supreme Court could be reaching more education decisions–if you assume the increase in amici participation is introducing a wider breadth of ideas–but that may have taken some of the power away from the parties that have skin in the game. If a litigant wants to leave a favorable lower-court decision to die, should the Supreme Court really object by appointing someone to artificially support that position?

Attorneys in every court make fringe arguments at the request of their clients or because those fringe arguments are the best available. When the Supreme Court appoints amici, however, they pushing the fiction of credible arguments even further by artificially appointing someone to represent a position they literally have no reason to support. That position is not in the best interest of their client, as in the proud adversarial tradition, nor is it really benefiting any ‘client’ at all.

Traditionally, appointed amici have been a mix of both experienced appellate litigators and relatively green ones, but recent appointed amici have been much younger. Those amici are sometimes appointed in relatively unimportant cases and advocate for positions that have very little likelihood of success (although some occasionally win the day). In that tradition, both Chief Justice Roberts and Latham & Watkins partner Maureen Mahoney argued their first cases as appointed amici. The advocates arguing in the Healthcare cases are a bit of an exception to that recent trend then because, while both are former Supreme Court clerks, they are also experienced advocates with more than a dozen arguments each and experience in the Office of the Solicitor General. In fact, Robert Long served in the Office of the Solicitor General while Chief Justice Roberts was a Deputy Solicitor General and only a few years after Justice Alito served as an Assistant to the Solicitor General.

In many ways, appointed amici are truly friends of the court. They write briefs and argue free of charge, and they have no client except the Court. It would be hard to find amici better than the ones appointed in the Healthcare cases, but should they have been appointed at all?

Well, not much has changed in her second year; Justice Sotomayor has proven to be roughly as liberal as expected. That isn’t surprising though, because Justices tend to act somewhat predictably during their first few years on the Court. If they do eventually diverge significantly from what their initial track record would support – à la Justices White or Souter – that drift isn’t typically apparent until a Justice has served for at least 3-5 years. Nonetheless, we can begin to analyze a Justice’s jurisprudence through a relatively small sample size with an eye towards future behavior. Here, I’ll look at three things: voting alignments, Martin-Quinn scores, and a few notable cases.

I. Voting Alignments

First, the easy part – statistics. Voting alignments show that Justice Sotomayor generally agrees with her liberal colleagues more than she does with the conservative ones. Below, I’ve listed her agreement rates with each of her colleagues in non-unanimous cases during OT09 and OT10.

Justice Sotomayor Voting Alignment – Non-Unanimous Cases – OT09 and OT10

Note, of course, that Justice Sotomayor served only one term with both Justice Stevens and his successor, Justice Kagan. If you sort Justice Sotomayor’s ‘agreement in judgment’ rates, you can see a more vivid picture of the Court’s ideological split.

There isn’t much to say here except that, although Justice Sotomayor and Kagan had a remarkably high agreement rate in non-unanimous cases during OT10, they still had only the second-highest rate of the term. Chief Justice Roberts and Justice Alito agreed in judgment in 93% of all divided cases.

II. Martin-Quinn Scores

Martin-Quinn scores generally track a Justice’s ideology across a variety of areas in the law. A negative score indicates a “liberal” voting history and a positive score indicates a “conservative” voting history. Over the past two years, Justice Sotomayor has clearly fallen left of the median on the Court.

Average MQ Score (OT09 and OT10)

*Served only during OT10
**Served only during OT09.

The most interesting aspect of MQ scores is that they purport to compare Justices across different generations. As you can see below, even the most “liberal” members of the current Court are relatively moderate by historical standards.

During OT09 and OT10, the Court (Sotomayor excluded) averaged 1.589. Sotomayor was therefore 1.570 below the mean. As you would expect, however, she is also just marginally more conservative than Justices Ginsburg, Breyer, and, her predecessor, Justice Stevens.

III. Notable Cases

Sotomayor is a reliable liberal vote, both generally and in the most high-profile cases. The statistics above provide support for her consistency in most cases, and a look specifically at the high-profile cases during OT09 and OT10 reveals the same trend. In McDonald v. Chicago, Salazar v. Buono, Citizens United v. FEC, Free Enterprise Fund v. PCAOB, Brown v. Plata, and AT&T v. Concepcion, she voted with the liberal bloc of the Court. Even in quirky cases like Bullcoming v. New Mexico, she seems to have assumed the same general position as her predecessor.

Her most notable betrayal was not much of a betrayal at all. In Sorrell v. IMS Health, Justice Sotomayor joined a five-justice conservative majority in striking down a Vermont law the regulated the distribution of prescription drug information.

IV. Conclusion

I wish there was shocking news to report, but there simply is not. After two years on the Court, Justice Sotomayor is just as liberal as expected, and she seems to have settled into her role rather comfortably. Cases like Sorrell suggest a willingness to deviate when necessary, but she clearly has not felt the need to break rankings with any measurable frequency.

The new changes should put the most important information front and center. I’ve also added new social media buttons that will allow you to share our posts on your social network of choice.

As a threshold matter, I think Professor Dorf’s theory is tremendously unlikely. The Court simply did not provide extended oral argument time in order to signal to one or more justices that this is a significant case. Each of the Justices is clearly well-aware of the scope of this case and, in any event, I am not sure that reinforcing the gravity of the situation generally is a way to woo any of the votes. The Supreme Court routinely hears major cases and, although this one is bigger than most, the idea of a landmark case heading to the Supreme Court is likely less novel for the Justices than it is for court watchers.

I think the truth is that the ACA cases simply present remarkably difficult legal questions and the Court has a short timeline for making a decision. Argument will likely be held across two days in March, and even assuming the case is heard on the first day possible and decided on the last day possible–March 19 and June 25, respectively–the Court will still have only 98 days to write this opinion during the busiest time of the term. As much as this case genuinely deserves a well-thought out, deliberate opinion, the Court will simply have to get this opinion right on the first try.

Extended oral argument could be a way for the Justices to flesh out some of the issues that might otherwise have been discussed via memo or screened out in early drafts. The Court may simply be trying to avoid a repeat of McConnell v. FEC, where it heard four hours of argument and still produced eight separate opinions after 93 days. Chief Justice Rehnquist was almost certainly less interested in building unanimity than his successor, however, and that may explain why the opinion was rushed out the door in such a fractured state. The Court will have a few more days this time, but the Justices will hope to produce more unified opinions.

Recently, in Citizens United v. FEC, the Court was forced to hold reargument on a new question of law and still took 134 days to produce a reasonably unified opinion. The Court released a majority opinion that was joined by only one member in full and four concurring opinions. The ACA cases have more moving parts, the Court will have fewer days to decide the cases, those days will be busier (March-June for the ACA cases and September-January for Citizens United), and political forces make a move for rehearing unlikely.

Moreover, the Justices realize that these issues are difficult and the presence of multiple petitions gave them an easy opportunity to grant extended oral argument time. Additionally, I’m not surprised that the cases were granted in tandem but not consolidated. Recently, the Court has been taking advantage of its discretion to hear cases that are similar but not identical separately. The presence of so many discrete brought up on so many different petitions made a division of issues an irresistable proposition for the Court. The Court may also wish to avoid a repeat of Citizens United, where the issues were not briefed in their entirety and rearmament was required to fully flesh out the case.

Whether extended oral argument signals the likely outcome of the case is harder to say. Proponents of the theory likely believe that extended oral argument implies that the Court will do more of its own thinking on the case and is less likely to simply follow the prevailing or “obvious” outcome of this case. Unfortunately, recent studies have suggested that the Supreme Court generally doesn’t typically heed the majority approach of circuits. I also instinctively tend to believe that the Court would do most of its own thinking on this matter and rely only peripherally on the views of lower courts. That might not be the case for other issues like specific sentencing matters or issues of statutory minutiae.

I generally think we cannot read into the outcome of the case from the decision to grant extra time, but the most compelling argument to support the notion that extend oral argument weights in favor of ACA challengers is that Justices may simply be more likely to extend argument if they are anticipate striking down the law. On an intuitive level, it seems more likely that a Justice would vote to extend time out of concern for incorrectly striking down a law than out of concern for incorrectly upholding a law. My methodology is hardly scientific, but I think the Court would be more likely to extend argument if it is leaning towards striking down a law than if it is leaning towards upholding it.

In the end, I think the extended oral argument was granted for two simple reasons: the Court knew this case would be a difficult one, and the Court knew that it would not have a lot of time to write the opinions. Joshua put it best:

If 5.5 hours of argument helps to avoid a blizzard of seriatim opinions, then lower court judges, casebook writers, and future generations of law students will be forever grateful that the Court took the extra time to sort out its views.

Amen.