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

• BONG HITS 4 JESUS (May 6, 2007)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)
• The Weeks Ahead (April 12, 2009)

In 1968, the Court ruled 8-1 in Flast v. Cohen (here) that Florence Flast and others could file suit against the Secretary of Health, Education, and Welfare for violating the First Amendment for the funding of religious schools. The Court acknowledged that “a taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.”

Since then, however, the reading in Flast has never been taken any farther and the Court has chipped away at the ruling with increasing frequency. In cases like DaimlerChrysler Corp. v. Cuno and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., the Court held the Flast exception to almost the exact fact-scenarios that arose in the original case.

In Hein v. Freedom From Religion, the Roberts Court had its first full-swing at the Flast exception. Justice Alito, joined by the Chief Justice and Justice Kennedy, refused to extend Flast to executive expenditures but also refused to strike the precedent entirely.

Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it.

The distinction drawn in Hein is hard to understand. Justice Alito attempted to draw a distinction between an expenditure of Congress and an appropriation granted to the executive branch via Congress. Justices Scalia criticized that weak distinction in his concurring opinion and the dissenting Justices harped on the same issue. Justice Scalia wrote in an opinion joined by Justice Thomas that “Flast‘s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.”

It wasn’t hard to predict that this court would react so violently to assertions of Taxpayer standing. Justice Scalia has been a critic of Flast for some time now and published a controversial journal article in 1983 titled “The Doctrine of Standing as an Essential Element of the Separation of Powers” in the Suffolk Law Review. In 1993, a young ex-Deputy Solicitor General named John Roberts published an article in the Duke Law Journal defending an opinion by Justice Scalia lashing out at Flast.

Today, in Earth Island Institute, the Court took a more sober look at the principles underlined in Flast. Justice Scalia authored a majority opinion that did not cite Flast or Frothingham once. Instead, the Court simply held that the Earth Island Institute could not prove a “concrete” and “imminent” harm and therefore did not have standing per Article III.

I’m curious to see what direction the Court will take moving forward. In Hein, only Justices Scalia and Thomas signed on to the idea that Flast should be completely overruled. At the same time, however, Chief Justice Roberts and both Justices Kennedy and Alito have been highly critical of Flast and have done everything short of striking it down. As it stands, a plurality of the Court seems perfectly content chipping away at Flast until there is nothing of substance left. The problem thus far seems to be that the Court hasn’t had an opportunity to see the precedent directly. That would require a very specific set of facts that are hard to recreate in the real world. An individual would have to file suit against a program directly authorized by Congress that allegedly violates the Establishment Clause. I’m not currently aware of any cases that look like that, but I wouldn’t be surprised to see one come up through the courts in the next few years.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hears Arguments in Sleeper Exclusionary Rule Case (October 9, 2008)

Opinions released: 26
Cases dismissed: 21
Oldest Case: Vanden v. Discover Bank, argued October 6, 2008 (141 day ago)
Average number of days between arguments and decision: 78.31

Cases dismissed at this point in OT 07: 16
Cases dismissed at this point in OT 06: 17

5-4: 3
6-3: 3
7-2: 1
8-1: 0
9-0: 12
Per Curiam: 1
Other:1 (US v. Hayes, 7-1)

Individual Justice Tables

Souter has developed a reputation for being a “slow” writer and the statistics from this term largely support that idea. Five out of seven decisions on which he’s written an opinion have taken over 100 days to come down (113, 113, 110, 109, 105, 98, 83). The average number of days between arguments and opinion is currently 78, but that number is likely to rise when more opinions come down but fall a bit by the time the Court adjourns in June because of the April argument dates. In past years, the average has been between 90 and 95 days.

The best way to judge a Justice’s speed in writing might be to look at their unanimous opinions when there are no other opinions. To increase the sample size, I used OT06, OT07, and OT08:

Average: 61.15

The distribution of 9-0 unanimous opinions is surprising. Stevens, Scalia, and Kennedy were assigned very few of the “easiest” cases from each term. Justices Thomas and Ginsburg, arguably the most reliable conservative and liberal voters, respectively, were assigned authorship of the greatest number of 9-0 decisions.

This might be indicative of the trend to assign controversial decisions to swing voters or Justices who might be able to command a majority. If that held true, Justice Kennedy would generally be assigned few 9-0 decisions because he was getting more of the 5-4 and 6-3 decisions for each sitting. Justices Stevens and Scalia are often considered the ideological leaders of their respective wings of the Court and they might therefore be more useful in building consensus than in penning the most uncontroversial opinions. Justices Stevens, Scalia, and Kennedy are also the three longest-serving Justices on the Court.

Alternatively, a high number of unanimous 9-0 decisions without separate concurring opinions could hint to the amount of comprise a Justice will allow. There are quite a few opinions with 9-0 judgements and a slew of concurring opinions, but a truly unanimous 9-0 decision might suggest that the author was willing to compromise on minor issues with other Justices. If there were concurring opinions, the author of the majority may have been unwilling to compromise on the scope of the opinion or on technical issues secondary to the main holding of the Court. Justices Stevens and Scalia are the two longest-serving Justices on the Court today, and the fact that they have already written on many of the issues presented to the Court might leave them with less room to compromise on opinions they write today.

Related posts

• Supreme Introductions (December 20, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Nine Swinging Justices (April 16, 2007)

I defined a ‘Subject Matter’ introduction as one in which the author wrote only about the facts of the case and did not mention the court below. See Justice Alito’s introduction in Gomez-Perez v. Potter:

The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized.

I defined a ‘Procedural’ introduction as one that included even a brief mention of the ruling below. The main distinction between ‘Subject Matter’ and ‘Procedural’ introductions is that in the latter, the author had to phrase the decision of the Court as a play off of the Court below. For example, in Richlin v. Chertoff, Justice Alito wrote this ‘Procedural Decision’ as the introduction:

The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse.

Finally, I defined a ‘Tease Facts’ introduction as one in which the author only mentioned (usually very briefly) the facts of the case and omitted any mention of the Court’s ultimate conclusion. Here is Justice Alito’s introduction in Davis v. Federal Election Committee which I categorized as a ‘Tease Facts’ decision:

In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.

As for length, I defined a ‘Short’ introduction simply as one limited to one paragraph. A ‘Long’ introduction was two paragraphs or longer in length.

An interesting argument could be made for each style. The data suggests that some Justices have a opinion on the matter and that their introductions isn’t simply a function of upon which clerk writes the opinion or the idiosyncrasies of the case in question. Four Justices (Breyer, Stevens, Souter, Thomas) used the same style in each of their opinions and two others (Ginsburg, Alito) made only one exception to their own self-imposed rule.

The ‘Subject Matter’ approach is the most straightforward and easily understood by lay-people reading opinions. A Justice that uses this approach with only a short introduction might be more inclined to decide a case on the fundamental issues at hand. A Justice who uses the ‘Procedural’ approach with a long introduction might be setting up his arguments aimed at technical issues separated from the politically divisive roots of a case. In the end though, there isn’t enough data here to reach any conclusions about why certain Justices prefer certain methods.

Justice Kennedy issued two opinions that defied the criteria I had set up for the three types of introductions that his peers used. In Federal Express v. Holowecki, Justice Kennedy presented some of the facts leading up the case then offered advice to any practitioners or judges who might use this opinion in the future, “[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” The phrase itself is not uncommon, but the fact that it was placed in the introduction is unorthodox.

The other curveball thrown by Justice Kennedy was in Gonzalez v. US, where Justice Kennedy did not structure his opinion with an introduction and subsequent sections, and, without sections, I had to use my judgement to decide how far the introductory part of the opinion extends. Luckily for me, the opinion features a decidedly introduction-like presentation of the question at hand before it jumps into what is normally a Section I discussion of the complete history. I’m not sure why Justice Kennedy (or one of his clerks) decided not to use the normal structure. The 8-1 decision (Thomas dissenting) weighed in slightly-underweight at 12-pages and otherwise features the standard components of a majority decision. The average majority opinion from OT 2007 was 19.16 slip pages but an opinion of only 12-pages doesn’t stand out as an aberration. 14 cases from the last term were 12-pages or shorter and all of them except Gonzalez were broken up into sections.

Justices Breyer and Souter both used only ‘Subject Matter’ introductions in their opinions. Even though the cases were written by different clerks, his preference shown through either from their research into his past opinions or from his corrections of the ones they gave him. Justice Stevens, who writes his own opinions, used all three types of opinions in both long and short form.

Justice Scalia’s introductions were always instantly identifiable. In each case, he used the ‘Tease Facts’ approach and his introduction was only a sentences or two long. Take a look at his introduction to DC v. Heller, shown in its entirety:

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

All of the Justices except Chief Justice Roberts and Justice Ginsburg preferred to use short introductions (those limited to one paragraph). The Chief Justice was split evenly 4-4 and Justice Ginsburg preferred lengthy introductions in six of her eight opinions. Four Justices refused to use long introductions at all (Breyer, Scalia, Souter, Thomas) and Justice Alito used them only once (Allison Engine Co. v. US.)

In a sign of things to come, Justice Roberts has already employed the ‘Procedural’ route this term in Winter v. NRDC when he declared “[t]he Court of Appeals was wrong, and its decision is reversed. ” In Altria Group v. Good, Justice Stevens used a ‘Procedural’ introduction as well. Hedgpeth v. Pulido, a case decided in a Per curiam decision, was written using the ‘Procedural’ style and was authored by the Chief Justice, Justice Scalia, Justice Thomas, Justice Kennedy, Justice Breyer or Justice Alito. Justices Stevens, Souter, and Ginsburg dissented from that opinion.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

Footnotes have, occasionally, caused quite a bit of controversy. In Microsoft v. AT&T (2007), Justice Ginsburg wrote a majority opinion for the court except for one footnote. The judgement line read as such:

Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion. Roberts, C. J., took no part in the consideration or decision of the case.

The footnote in question:

¹⁴In a footnote, Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability under §271(f) if the disk were removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at 2–4 (ALITO, J., concurring). We need not and do not reach that issue here.

It seems odd that Justice Ginsburg would only discuss the topic in a footnote if it was divisive enough to cause Justices to change their vote. The most famous footnote from a Supreme Court opinion is ‘Footnote 4′ from the majority opinion in US v. Carolene Products (1938). In it, Justice Stone famously hinted towards the possibility of heightened levels of scrutiny “when legislation appears on its face to be within a specific prohibition of the Constitution.”

Analysis of the modern court’s use of footnotes is difficult because most Justices do not write their own opinions. Justice Stevens is the only Justice known to write his first drafts with any frequency and he has long stated that footnotes are useful because they provide the user with ‘optional reading.’ In his majority opinion in Altria, Justice Stevens employed 14 footnotes.

I took a look at the majority and plurality opinions from OT 07 to see how frequently each Justices uses footnotes. I looked only at majority and plurality opinions because they follow the most consistent structure and length. Concurring and dissenting opinions serve different purposes and are more difficult to compare amongst one another and with other types of opinions. I also calculated the number of footnotes per page and the page count refers to Slip Pages.

Case	Vote	Author	Footnotes	Pages	F/P
CSX	9-0	Roberts	4	12	0.33
Knight	9-0	Roberts	4	13	0.31
Medellin	6-3	Roberts	14	37	0.38
Clintwood	9-0	Roberts	0	12	0.00
Baze	7-2	Roberts	7	24	0.29
Engquist	6-3	Roberts	0	17	0.00
Munaf	9-0	Roberts	6	28	0.21
Plains	9-0	Roberts	3	24	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Gall	7-2	Stevens	11	21	0.52
LaRue	9-0	Stevens	6	8	0.75
Danforth	7-2	Stevens	24	27	0.89
Crawford	6-3	Stevens	21	21	1.00
Ressam	8-1	Stevens	2	6	0.33
Irizarry	5-4	Stevens	2	8	0.25
Brown	7-2	Stevens	2	16	0.13

Case	Vote	Author	Footnotes	Pages	F/P
Torres	9-0	Scalia	0	12	0.00
Riegel	8-1	Scalia	6	17	0.35
Virginia	9-0	Scalia	4	13	0.31
Williams	7-2	Scalia	3	21	0.14
Santos	5-4	Scalia	8	17	0.47
Giles	6-3	Scalia	7	24	0.29
Mogan Stanley	5-2	Scalia	6	26	0.23
Heller	5-4	Scalia	29	64	0.45

Case	Vote	Author	Footnotes	Pages	F/P
Stoneridge	5-3	Kennedy	0	16	0.00
Federal Exp.	7-2	Kennedy	0	17	0.00
Gonzalez	8-1	Kennedy	0	12	0.00
Boumediene	5-4	Kennedy	0	70	0.00
Philippines	9-0	Kennedy	0	20	0.00
Dada	5-4	Kennedy	0	20	0.00
Kennedy	5-4	Kennedy	0	37	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Watson	8-1	Souter	9	9	1.00
Boulware	9-0	Souter	14	17	0.82
Hall Street	6-3	Souter	7	15	0.47
Dept. of Rev.	7-2	Souter	21	28	0.75
Meacham	8-0	Souter	14	17	0.82
Rothgery	8-1	Souter	17	20	0.85
Exxon	8-0	Souter	28	42	0.67

Case	Vote	Author	Footnotes	Pages	F/P
Ali	5-4	Thomas	7	14	0.50
Sprint	9-0	Thomas	3	9	0.33
Wash. St. Gr.	7-2	Thomas	11	16	0.69
Cuellar	9-0	Thomas	8	17	0.47
Quanta	9-0	Thomas	7	19	0.37
Bridge	9-0	Thomas	7	21	0.33
Picca-Dilly	7-2	Thomas	3	19	0.16

Case	Vote	Author	Footnotes	Pages	F/P
Logan	9-0	Ginsburg	6	13	0.46
Kimbrough	7-2	Ginsburg	15	23	0.65
Preston	8-1	Ginsburg	8	16	0.50
New Jersey	6-2	Ginsburg	22	23	0.96
Burgess	9-0	Ginsburg	5	11	0.45
Riley	7-2	Ginsburg	13	20	0.65
Taylor	9-0	Ginsburg	13	25	0.52
Greenlaw	7-2	Ginsburg	9	17	0.53

Case	Vote	Author	Footnotes	Pages	F/P
John R.	7-2	Breyer	0	9	0.00
Rowe	9-0	Breyer	0	11	0.00
Begay	6-3	Breyer	0	11	0.00
CBOCS	7-2	Breyer	0	14	0.00
Met. Life	7-2	Breyer	0	13	0.00
Kent. Ret.	5-4	Breyer	0	14	0.00
Indiana	7-2	Breyer	0	13	0.00
Sprint	5-4	Breyer	0	23	0.00

Case	Vote	Author	Footnotes	Pages	F/P
Snyder	7-2	Alito	2	13	0.15
MeadWestvaco	9-0	Alito	4	15	0.27
Rodriquez	6-3	Alito	5	14	0.36
Gomez-Perez	6-3	Alito	6	16	0.38
Richlin	9-0	Alito	10	18	0.56
Allison	9-0	Alito	2	10	0.20
Davis	9-0	Alito	9	19	0.47

I’ve summarized all of that into a more succinct table:

Remember that all of the Justices, except for Stevens, have their law clerks write the first draft of each opinion. With that in mind, however, I was surprised to see that Justices Kennedy and Breyer didn’t use any footnotes at all. Overall though, it seems like footnotes are a stylistic thing more than a substantive disagreement. Justices who use them tend to use them frequently and Justices who aren’t fond of them don’t use them much at all. It also doesn’t really matter which clerk writes the opinion because nearly Every Justice who uses footnotes uses them in almost ever case.

I also crunched the numbers on the average number of footnotes in opinions based on the votes in the majority. I excluded opinions written by Justices Kennedy and Breyer. Note: These numbers do not represent opinions with irregular voting blocs (ie. 5-3, 5-2, 7-1, etc)

Odd. Statistically speaking, 8-1 opinions featured the highest number of footnotes. That is likely just a result of Justice Souter writing with disproportionate frequency in 8-1 opinions this year (2 out of 5.)

Cases with the most footnotes:

Heller 5-4 Scalia 29 64 0.45
Exxon 8-0 Souter 28 42 0.67
Danforth 7-2 Stevens 24 27 0.89
New Jersey 6-2 Ginsburg 22 23 0.96
Crawford 6-3 Stevens 21 21 1.00
Dept. of Rev. 7-2 Souter 21 28 0.75
Rothgery 8-1 Souter 17 20 0.85
Kimbrough 7-2 Ginsburg 15 23 0.65
Medellin 6-3 Roberts 14 37 0.38
Meacham 8-0 Souter 14 17 0.82

These represent an interesting cross section of the Court’s cases. Of course, none of the tight 5-4 decisions issued by Justice Kennedy are featured here, but Justice Scalia’s landmark opinion in Heller leads the list. Oral arguments in Danforth lead to an unusually heated debate between the justices, literally. Medellin produced an unusual decision from the Court in which the conservative majority struck against the President and ruled that ICC judgements were not binding on state courts. Two of the other major cases decided by the Court, Kennedy (Juvenille Death Penalty) and Boumediene (Detainee habeus claims), were written by Justice Kennedy and therefore had no footnotes.

Related posts

• Supreme Introductions (December 20, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

Justice Stevens penned the majority opinion and was joined by Justices Kennedy, Souter, Ginsburg, and Breyer. Justice Thomas filed a dissenting opinion that was joined by the Chief Justice and Justices Scalia and Alito.

In a 5-4 decision, the Supreme Court struck down the cigarette-makers’ claim that federal labeling laws preempted state-level action against the content of those labels. See more of our analysis on the cases here and here.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Court Hands Down First Opinion of the New Term (November 14, 2008)
• Unity Defined (June 11, 2007)

Once again, Justice Scalia comes in as the most talkative and averages 21 comments per hour of arguments. That shouldn’t surprise many people as he has always been known to be a particularly vocal member of the court. Justice Thomas still hasn’t spoken since February 22, 2006. Chief Justice Roberts and Justice Breyer both average about 18 comments per case. On the other side of the spectrum, Justice Alito spoke an average of only 5 times per case. Justices Stevens, Kennedy, and Ginsburg spoke with similar frequency at 12, 11, and 10 times per argument, respectively.

This chart covers the difference between Justices’s overall speaking average and their average per individual court. I’ve highlighted the times when justices had variations of greater than 5 in either direction. I was particularly surprised to see that Ninth Circuit Cases had very little effect on justices, and, if anything, they actually spoke slightly less than usual.

When more cases start coming down, I’ll be interested to see what effect speaking frequency has on voting. Does Justice Kennedy speak more when he votes in favor of a case? Do Justices Stevens or Scalia speak more when they think a case will come down 5-4? With only 2 cases decided on merit thus far, its hard to say at this point but I’ll keep track of the decisions as they come down and post when I’ve collected enough data for some basic analysis.

You can find the data in these formats: xls, numbers, and, of course, pdf. Feel free to play with the data and let me know what conclusions you come up with!

Related posts

• Updated Humor Statistics (March 7, 2008)
• Supreme Introductions (December 20, 2008)
• Methodology 101 (July 1, 2007)

A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

Wrotnowski v. Bysiewicz is a motion for injunction filed by Cort Wrotnowski against Susan Bysiewicz, Secretary of State of Connecticut to halt the electoral college to hear a complaint against Barack Obama’s claim of citizenship. Unlike some of the other claims before the Court, this case focuses primarily on the President-elect’s father’s nationality. You can read the petition here.

According to the docket sheet (here), Justice Scalia referred the case to the Court as a whole today and it will be discussed at the December 12 conference. There is very, very little doubt that the Court will dismiss the case as it has the last two citizenship challenges to come before it.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

The common consensus says that President Obama will have little opportunity to affect the Court in the long run with any nominations in his first term. If he replaces any combination of Justices Stevens, Souter, and Ginsburg, he will be replacing a liberal Justice with another nominee who will likely be a solid liberal.

That line of thinking is not flawed, but it does overlook the subtle impact that Justices have on the Court. After cases are voted on, the senior-most Justice on each side of the decision is tasked with delegating the responsibility of writing their opinion. Justice Stevens, the senior associate Justice both among the liberals and, after the Chief Justice, amongst the Court at large, has used his delegating authority skillfully to build consensus for his positions. He frequently comments on the importance of delegating opinion-writing responsibly and he has often given the opinion to Justice Kennedy when he wasn’t solidified on the liberal position. Similarly, he claims to have taken several opinions for himself in order to write an opinion that could most easily attract four other Justices. If Justice Stevens retires, the senior-most Justice in a liberal 5-4 decision would be Justice Kennedy himself and it is difficult to predict how he would handle that responsibility. What is clear, however, is that with 14 years of experience as the Senior Associate Justice and 33 years on the Court, few Justices know how to handle the responsibility better than Justice Stevens.

President Obama will also have the chance to re-energize the ailing liberal bloc. While appointing young judges to the Court would do little in the short-run to counter the conservative revolution, depending on the number of Justices he can replace, he can give the next like-minded President the opportunity to seriously sway the court. The popularity of Justice Scalia within the academic and law community has undoubtedly had an impact on the way his distinct opinions and jurisprudence are received in the legal community. The liberal wing of the Court lacks a clear ideological leader who can condense their complex ideology into an idea that can be popularly marketed to a public that is skeptical of the phrase ‘judicial activism,’ despite being more fond of its policy outcomes. President Obama may get the chance to appoint a nominee who can do for liberal jurisprudence what Justice Scalia has done for textualism and he should not shrink from that responsibility.

Regardless, talk of long-term strategy may also be premature. In 2005, Justice O’Connor shocked the legal world when she, seemingly in full health, retired at 75 to care for her husband who had fallen ill. Justices Scalia and Kennedy are both 72 and have served on the nation’s highest court for more than two decades. Chief Justice Roberts has had a history of epilepsy and most recently suffered a seizure while on vacation in 2007. Justice Thomas has also had a particularly poor relationship with the Washington political scene after his confirmation hearings turned into a media circus following a sexual harassment allegation by former staffer Anita Hill.

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• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)

You can find statistics from the term here.

Cases Completed:

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CHIEF JUSTICE ROBERTS: We will hear argument next in Case 07-1125, Fitzgerald v. Barnstable School Committee. Mr. Rothfeld.
MR. ROTHFELD: Thank you. If it please the Court:
The court of appeals in this case — excuse me, Your Honor.
JUSTICE GINSBURG: Could you raise the podium?
MR. ROTHFELD: Actually, I have never used this before, so it’s a learning experience for me, Your Honor.
JUSTICE STEVENS: That’s enough.
MR. ROTHFELD: Okay.
JUSTICE STEVENS: We can’t see you.
MR. ROTHFIELD: That — that may be an advantage, Your Honor.
(Laughter.)
JUSTICE GINSBURG: But we can hear you.

Again:

JUSTICE SCALIA: …That is an important question. It’s why we took the case. Why can’t we decide that issue and then for all these loose ends, send it back to the court of appeals?
MS. HODGE: Because there must be an issue in controversy for this Court to send any — there must be an issue in controversy here and also —
JUSTICE SCALIA: He says there is an issue in controversy, that’s good enough for me.
(Laughter.)

In Entergy Corp. v. Riverkeeper, Inc.:

JUSTICE BREYER: But to be honest about it, I would have to say the reason it isn’t available is quite — it isn’t available for minimizing the — the harm — that particular adverse impact which is killing a — a water animal. The reason it isn’t is because it doesn’t kill any water animals. Well, let me be honest; it kills one, or it kills two —
MR. LAZARUS: But —
JUSTICE BREYER: Or it kills three, and don’t tell me de minimis, because as soon as you say de minimis, I’m going to add one, okay?
(Laughter.)

Again:

CHIEF JUSTICE ROBERTS: Well, if you get to that money in the bank, does this mean that best technology available changes over time? I mean, maybe the industry could have borne these costs two years ago, but they probably can’t today. Nobody has money in the bank today.
(Laughter.)

Again:

JUSTICE BREYER: And the — the question I have from your point of view is the — the obverse question: if you look at this particular cost-benefit analysis, I mean, it goes through all these things which, they don’t know what the numbers are, nobody knows what the values of the fishes are, which 98% are never even eaten, they are fast swimmers or whatever.
(Laughter.)

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• Oral Argument Stats Posted (December 12, 2008)
• Unity Defined (June 11, 2007)
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JUSTICE SCALIA: Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief. You indeed did.
MR. BRESS: Well, thank you, Your Honor. I thought —
JUSTICE SCALIA: I’m grateful for your not throwing it in my teeth.

More on the event here.

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• Oral Argument Stats Posted (December 12, 2008)
• Oral Argument Jokes of the Day (December 2, 2008)
• Court Hears Arguments in Sleeper Exclusionary Rule Case (October 9, 2008)

Chief Justice Roberts authored a majority opinion and was joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Breyer authored an opinion concurring in part and dissenting in part which Justice Stevens joined in part. Justice Ginsburg filed a dissenting opinion and was joined by Justice Souter.

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• Footnotes in Supreme Court Opinions (December 19, 2008)
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Justices on both sides of the normal ideological division seemed unpersuaded by the NRDC. Justice Breyer at one time asked,

I will express a little frustration. Not your fault. But why couldn’t you work this thing out? I mean, they are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions. And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable. And the issue at law seems to be something that is going to last for two months. So — so, why? What is so — what is the important thing here?

The argument eventually came down to deciding whether or not the Navy was required to file an Environmental Impact Statement before it could proceed with the sonar training. An Environmental Assessment had been conducted which concluded that the training was most likely harmless to marine mammals in the area. The Navy failed to file a more comprehensive EIS and Justice Souter noted that the Navy was acting “in a state of some degree of ignorance greater than would e the case if it .. had done the EIS” Justice Scalia was adamant that the only harm caused here was procedural – that no EIS had been filed – and that was insufficient to confer standing to the NRDC to file against the Navy.

The NRDC argued quite simply that the original finding by the district court was justified by evidence in the case and unless it was ‘clearly erroneous,’ it should not be overturned by this court. Justice Alito found it odd to justify a single judge’s opinion of a military exercise overturning the determination of the Military.

In the end, it looks like Justice Breyer will almost certainly side with the Chief Justice and Justices Scalia and Alito. As usual, Justice Thomas didn’t say anything but if you assume that he will side with his fellow conservatives, then the case is closed. Justice Kennedy is harder to read although he expressed some skepticism at the NRDC’s claims and to be honest- the standing argument is pretty persuasive. The NRDC also pushed the idea that beaked whales were being beached en mass by the Navy’s use of sonar and the Navy refuted that claim, but the science of the matter may be lost on both sides. The conservatives will likely claim that the experts and evidence point in their direction, the liberals will claim that it weighs in their favor.

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• Oral Argument Stats Posted (December 12, 2008)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)

The Court has long held that a mistake by the police in arresting someone can be considered probable cause if the officer in question believes he is correctly applying the law. As Justice Scalia points out, if an officer mistakenly searches someone whom he believes to have just stolen, the contents of that search can be submitted in court. The question Chief Justice Roberts and Justice Scalia have, is what substantive difference is there between that scenario and this one? Pamela Herring, counsel for Bennie Herring, argues that the difference is that a warrant is not enough to spark probable cause for a crime. The argument goes that a warrant itself does not create probable cause and that a warrant is only a reaction to probable cause that lead to its creation.

Justice Scalia has long been known to be in favor of severely curtailing the exclusionary. During arguments he took issue with Mrs. Herring’s assertion that police departments would ‘willy-nilly not keep track of warrants’ if the exclusionary rule were not in place.

Michael Dreeben spoke next, in favor of the US. He argued primarily that imposing the exclusionary rule in an isolated instance like this one would not deter future police action and is therefore not a valid application of the exclusionary rule.Justice Stevens and Ginsburg were particularly concerned with the effects that the removal of the exclusionary rule would have on police behavior.

Its hard to tell exactly how this case will be decided, but the four horsemen as well as Justice Kennedy appeared to be firmly in favor of siding with the Government. Justice Scalia has long been in favor of peeling back the Exclusionary Rule in favor of a more flexible guideline in place in most countries around the world. The exclusionary rule in the United States is considerably more restrictive of police behavior than its counterparts elsewhere in the world. Justice Kennedy seemed sufficiently convinced that there were enough safeguards in place to prevent police from abusing power in most circumstances. He specifically mentioned §1983 in a number of instances and seemed to believe it may be powerful enough to prevent police negligence.

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• Oral Argument Stats Posted (December 12, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
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Justice Kennedy wrote an order discussion his alterations to the opinion (here) and Justice Scalia wrote a statement in response (here.) Justice Kennedy was joined by each of the four members who had joined his original majority opinion and Justice Scalia was joined by the Chief Justice.

It is important to note that in his statement accompanying the dismissal of the motion for rehearing Justice Scalia notes that he had voted against rehearing because “the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.” Only Justices Alito and Thomas had voted in favor of rehearing.

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WARREN: Which existing Supreme Court Justice would you not have nominated?

OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.

And then to Senator McCain:

WARREN: Which existing Supreme Court Justices would you not have nominated?

McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.

The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations

should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the bench….some of the worst damage has been done by legislating from the bench.

A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:

WARREN: How about John Roberts?

OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.

WARREN: All right. When I pick this up it means –

OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration – whether it’s mine or George Bush’s – more power than I think the Constitution originally intended.

Also receiving a shot out from Obama was Justice Scalia:

OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.

I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.

But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.

For those intrested, the full transcripts from the event are available here.

UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.

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• President Obama and the Future of the Supreme Court (December 4, 2008)
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Opinions are straight 5-4, one majority and two dissent. No concurring, partials. I’m surprised to see that happen. In a term where we’ve seen a remarkably low rate of 5-4 standard ideological splits, this clear delineation resonates loudly enough that I can hear it a thousand miles away.

HELLER OPINION HERE.

Justice Scalia drops a classic lesson in Second Amendment textual interpretation. According to Justice Stevens, he “discusses the prologue last.” Whatever you want to call it, Scalia talks about the right of individual people first.

It is only on Page 56 that he finally gets to DC’s specific legislation. He declares the ‘inoperable’ requirement to be unconstitutional:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Try not to act too surprised, but Stevens talks at length about how the Court’s shouldn’t reverse every decision it makes and that at a certain point, a decision like Miller is set in stone.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law.

Related posts

• Looking Ahead to Watson v. US (August 20, 2007)
• Supreme Introductions (December 20, 2008)
• DC v. Heller Expected Soon (June 26, 2008)

I think I would be most surprised to see Justice Scalia, the likely author of the opinion, incorporated like most of its fellow amendments in the Bill of Rights. Gun Rights advocates would love to see it happen, but I just don’t see it. Even though as a citizen I’m not fond of expansive Second Amendment rights, I would just love to see Justice Thomas succeed in finally getting something incorporated via the ‘privileges and immunities’ clause, a much better vehicle of incorporation in my opinion.

It will also be interesting to see if Scalia goes all-out and loses his majority, reigns in his possibly extreme opinions and keeps his majority, or goes all-out and retains a majority.

Related posts

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• Looking Ahead to Watson v. US (August 20, 2007)
• DC v. Heller Thoughts and Analysis (June 26, 2008)