STATEMENTS FROM THE SUPREME COURT
REGARDING JUSTICE DAVID H. SOUTER’S RETIREMENT
May 1, 2009

Chief Justice John G. Roberts, Jr.:

Justice Souter has served with great distinction on the Court for nearly 20 years. His desire to return to his native New Hampshire is understandable, but he will be greatly missed in our deliberations.

Associate Justice John Paul Stevens:

As Justice Blackmun accurately stated when Justice White advised us of his proposed retirement from the Court, an announcement of this kind “is an emotional occasion.” Because Justice Souter is such a good friend, my first reaction to his decision is one of real personal loss. Because I am confident that I know how his professional work will be judged by future historians, my more important reaction is that the Court will suffer a far greater loss than many now realize. I wish he had postponed the decision that he has just announced.

Associate Justice Antonin Scalia:

David and I have served on this bench together for almost 20 years — sitting next to each other at argument for all of that time. I will miss his always intelligent contribution to our work, but most of all I will miss his companionship. The only consolation is that I am sure he will be happy back in his cold and beloved New Hampshire.

Associate Justice Anthony M. Kennedy:

The two months remaining in this term now become all the more precious to us, for we know our splendid colleague Justice David H. Souter will soon leave here for the home and the State to which he longs to return. In our free moments David was one of the best raconteurs, one of the most adept and amusing storytellers, I have ever encountered. In our conferences and deliberations all of us knew we had the guidance of a powerful intellect and a fine, dedicated jurist. The Nation should be grateful always for his integrity and absolute probity, and for his lasting contributions to our law and to the dignity of this Court.

Associate Justice Clarence Thomas:

I have been privileged to serve on the Court with Justice Souter for almost two decades. It is an honor to have been one of his colleagues at the Court. Though deeply saddened by the departure of a friend and colleague, I am comforted by the knowledge that the bonds of friendship that have been formed during our toils here shall happily remain firm. Virginia and I wish him much happiness and contentment.

Associate Justice Ruth Bader Ginsburg:

Among jurists with whom I have served, Justice David H. Souter is the very best. His level of preparation for the cases we consider is astonishing. He works so hard at getting it right. He is a genuinely caring man and a model of civility. Never have I heard him utter a harsh or unkind word. I count it my great good fortune to have known him as a working colleague and dear friend.

Associate Justice Stephen G. Breyer:

As a member of this court, Justice Souter has given nineteen years of inspirational service to the Nation. David is a close colleague and a warm personal friend. I shall miss him here. So will we all.

Associate Justice Samuel A. Alito:

I was sad to hear of David Souter’s decision to retire from the Court. From my first day on the Court, he has been a wonderful colleague. He has dedicated so many years to exemplary judicial service. We will miss him deeply.

Related posts

• Sources: Souter to Retire – What Now? (April 30, 2009)
• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Nominee Speculation (April 30, 2009)

Thanks to SCOTUSblog, we can see the Court’s press release here and Justice Souter’s letter here.

You can read the President’s remarks on Justice Souter’s retirement here.

Related posts

• The Upcoming Weeks (May 16, 2009)
• The Final Opinions (June 27, 2009)
• Supreme Introductions (December 20, 2008)

Even though it is normally the conservatives who worry about accidentally picking a Justice who isn’t what they bargained for (SOUTER), it isn’t impossible for Justice Souter’s replacement to be slightly less liberal than his or her predecessor. When Justice Breyer was nominated to the Court in 1994, he seemed like a standard down-the-line liberal Justice but he has since developed a reputation for betraying the liberal cause. Justice Souter has been a more consistent liberal voice, much more in the mold of Justice Ginsburg or Justice Stevens (ie.Arizona v. Gant).

If President Obama decides to look outside the well-established federal Judiciary for his first Supreme Court nominee, he could end up getting a Justice who breaks the mold of what we now consider a liberal justice. Justice O’Connor was generally conservative but heavily favored States-rights because of her experience as a state legislator. If President Obama were to pick a politician like Deval Patrick, his nominee would face a similarly complex alignment of politics, experience, and jurisprudence.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Nominee Speculation (April 30, 2009)
• Sources: Souter to Retire – What Now? (April 30, 2009)

For better or worse though, President Obama will not be able to replace Justice Souter with an identically-situated clone. While I’m not familiar with any situations in which Justice Souter served a role as what we now consider a “swing vote,” his vote was integral in forging several 5-4 majorities that were not decided along the standard liberal-conservative lines. The most prominent example would probably his position on limiting punative damages in cases like Philip Morris v. Williams (2007) where he lined up with the Chief Justice and Justices Breyer, Alito, and Kennedy to limit the amount of punitive damages that could be leveled upon Philip Morris after they were assessed punitive damages nearly 100 times larger than the compensatory damages.

Just a few weeks ago, the Court decided in Arizona v. Gant (2009) that police officers had limited powers to search the passenger compartment of a car during a routine traffic stop. The case was decided 5-4, but not along the traditional lines. Justice Stevens issued a majority opinion for Justices Scalia, Souter, Thomas, and Ginsburg. Justice Breyer, normally considered a member of the Court’s liberal wing, dissented alongside the Chief Justice and Justices Kennedy and Alito.

The list of cases with non-standard configurations (whatever that means) could go on and on. Last term, the Court decided 5-4 cases along standard lines in only 8 of 12 cases. That leaves a lot of room for Justice Souter’s replacement to significantly alter the trajectory of Constitutional Law in very significant ways.

There are also more subtle changes that Justice Souter’s replacement could signal. People frequently call for a “Justice Scalia-style” Justice, unaware of its real meaning. Despite his enjoyable writing-style, he isn’t nearly as persuasive as people may think. His stubborn adhesion to brightlines and propensity to overturn even recently established precedent has alienated Justice Kennedy on several key issues and there are signs that the Chief Justice, and to a lesser degree Justice Alito, may not be sympathetic to his approach. As Orin Kerr pointed out, there is a reason that a wildly-popular collection of his opinions is called Scalia Dissents.

On a court where several of the most important decisions hinge on the vote of Justice Kennedy, Justice Souter’s replacement could have a very real impact on building consensus for the Court’s liberal agenda. The court hasn’t had a new liberal justice in 15-years and since Justice Breyer’s ascension to the High Court the Court’s liberals may have become ideologically stale. The influx of even a single new ideology could be refreshing for the Court’s liberals and have a significant impact on keeping Justice Kennedy on their side on major issues as well as forging more sturdy majorities in the long-run.

Related posts

• Nominee Speculation (April 30, 2009)
• More On Justice Souter’s Role in Building Consensus (May 1, 2009)
• Sources: Souter to Retire – What Now? (April 30, 2009)

•+ U.S. Solicitor General Elena Kagan, a former Harvard University law professor.
• Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois.
• Pam Karlan, a law professor at Stanford University.
• Judge Margaret McKeown of the 9th U.S. Circuit Court of Appeals in San Francisco.
•+ Judge Diane Wood of the 7th U.S. Circuit Court of Appeals in Chicago.
• Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco.
•+ Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals in New York.
• Massachusetts Gov. Deval Patrick.
• Cass Sunstein, a law professor at Harvard University.

These must be old, because he was tipped by Obama to run the Office of Information and Regulatory Affairs but hasn’t started in that position yet. I’d say the most likely nominees are Kathleen Sullivan, former Dean of Stanford Law School, Elena Kagan, Solicitor General, and Sonia Sotomayor, Second Circuit judge.

I’m not sure I buy into the common consensus that his nominee will result in more of the same. President Obama has the chance to nominate a ferociously liberal justice in the mold of Justice Ginsburg or a technocrat in the mold of Justice Breyer. He can also choose the age of his nominee, will he go for the standard 50-55 range, or shoot younger, for the 40-45 age range like Justice Thomas, who was 43 when he was nominated to replace Thurgood Marshall.

Starting age isn’t always a deciding factor. Justice Souter was 51 when he was elevated from the First Circuit and he retired at 69 after 18 years. Justice Stevens, on the other hand, was nominated at 55 and is now 89-years old.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• More On Justice Souter’s Role in Building Consensus (May 1, 2009)
• Sources: Souter to Retire – What Now? (April 30, 2009)

It isn’t terribly surprising, ATL had been reporting that he hasn’t hired terms for OT09 and UTR reported on a clandestine meeting between Justice Souter and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.

Assuming that the news agencies are correct: What now? Well, if Justice Souter confirms the stories and officially announces his resignation soon, President Obama may take the next few months to choose a nominee and he may even nominate that person before the Court finishes its term.

Because he did not hire any clerks, it is likely that Souter will announce his retirement immediately upon the conclusion of the term, unlikely Justice O’Connor, who announced that she would resign as soon as her replacement was seated. It is also possible that he will take the same path that O’Connor took and simply ask his clerks to stay on a bit longer. Ordinarily, when a Justice announces his retirement at the end of a term, their successor is confirmed by the first Monday in October.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Official Statements from Eight Members of the Supreme Court on Justice Souter’s Retirement (May 1, 2009)
• Nominee Speculation (April 30, 2009)

Number of Opinions: 43 cases
Per Curiam: 7 cases (16%)
9-0: 19 cases (44%)
8-1: 1 case (2%)
7-2: 4 cases (9%)
6-3: 5 cases (12%)
5-4: 7 cases (16%)

I read this article from the AP wires about the apparent unanimity during this term and they summed up the term fairly well. There has been quite a bit of unanimity on the Court thus far, but the most divisive opinions usually come down late in a term. To quote them:

This year, the justices have yet to hand down rulings in three cases that were argued in October and November, sure signals of contention.

I’m not so sure about that. Last year, the Court issued 6 opinions that took 120-160 days to be decided (remember, the average was around 92 days).

There were another 6 opinions that took 160-200 days to be completed.

..And two opinions that took over 200 days to be decided.

The AP article generally describes ‘contention’ as the presence of 5-4, 6-3, or 7-2 opinions. In that sense, cases that take longer than the average are ‘contentious’ but I was surprised to see so few 5-4 opinions. Out of the 14 cases that took over 120 days to be decided (a month more than average), only four were 5-4 splits and a plurality were 6-3 and 7-2 decisions.

The sheer number of opinions also doesn’t lend itself to the idea that ‘late’ cases are more contentious than other opinions. Last year, there were 186 opinions issued in all cases (6 Per Curiam, 68 majority, 44 concurring, 11 concurring-in-part and dissenting-in-part, 57 dissenting) and an average of 2.5833 in each case. These cases were generally on the higher-end of normal.

Which Justices authored opinions in the ‘latest’ cases?

If you look only at cases that took over 160 days:

Justice Souter has developed a reputation for being taking his time authoring opinions, something that has lead several court-watchers to assume that he has written an opinion if it takes longer than usual. Based on these numbers though, he doesn’t seem to be much slower than anyone else. In February, I crunched some numbers on this but didn’t go as far as I could have. I updated those statistics and I’ll reproduce them below.

I looked at the number of days between argument and opinion when a Justice wrote for a unanimous Court with no separate opinions:

Average: 61.15

He doesn’t seem drastically slower than any other justice, but he was above the average. Justice Ginsburg pulled down the average quite a bit by writing 6 opinions and averaging 44 days.

Once again, I’ve gotten off-topic. Cases at the end of the term tend to be slightly more ‘contentious’ than most but that doesn’t necessarily mean that we should bank on any one being a 5-4 opinion. In fact, the case that took the third longest to be decided last year, Department of Revenue v. Davis, was a 7-2 decision and likely only took so long because there were seven different written opinions. Even then, five of those opinions were less than 3 pages long- Stevens(c): 3 pages, Scalia(c): 2 pages, Thomas(c): 2 pages, Roberts(c): 3 sentences, Alito(d): 1 sentence).

Its hard to speculate on this term’s ‘late’ cases. From October, Arizona v. Gant is outstanding and from November, Melendez-Diaz v. Massachusetts and FCC v. Fox (that information is from an April 1 post on SCOTUSblog, but for some reason the post was taken down. It was here).

Those are some moderately-high-profile cases. Gant focuses on an interesting Fourth Amendment question, Melendez-Diaz centers on the confrontation clause, and FCC v. Fox is the high-profile ‘fleeting expletives’ case. It isn’t hard to imagine each of those being decided by a close 5-4 margin, so my analysis might prove to be totally wrong for this year. Sorry?

Related posts

• Supreme Introductions (December 20, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Methodology 101 (July 1, 2007)

I am not through regretting that my position in United States v. Navajo Nation, 537 U. S. 488, 514–521 (2003) (dissenting opinion), did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here.

In 2003, the Court held 6-3 that the Navajo had not proven a breach of trust as required by the Indian Mineral Leasing Act. Justice Ginsburg authored the majority opinion and was joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, Thomas, and Breyer. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and O’Connor.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• SCOTUS Versus POTUS (April 3, 2007)
• Looking Ahead to Watson v. US (August 20, 2007)

The idea of late hiring isn’t totally unfounded though. Just last year, ATL posted Souter’s hirings March 11, 2008 and posted the final hirings for OT08 on April 17, 2008.

I honestly wouldn’t read too much into it. Souter always either hires his clerks late or his clerks don’t care enough to send David Lat an email about their swank new jobs. Even if he knew he was going to retire, he would hire clerks in the event that his successor doesn’t start on time or to help the new justice settle into the job. Either way, it would be a reckless maneuver on his part and his reverence for the institution would never allow it. Justices have traditionally hired for the next term even if they intended to retire in order to help incoming Justices get settled into their new job without having to worry about clerks and Justice Souter would keep up that practice. His reverence for the Court and its procedure is actually the reason I’m not totally convinced that he’ll retire at the end of the term. His famous claim that cameras in the Supreme Court would have to “roll over his dead body” comes to mind here.

In 2005, from my understanding, Justice O’Connor had hired clerks for the upcoming term even though she intended to submit her resignation at the end of the term. I couldn’t imagine Justice Souter doing things differently.

Update: Orin Kerr brings up the issue again at The Volokh Conspiracy here.

Related posts

• Supreme Introductions (December 20, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Upcoming Cases to Watch (June 17, 2009)

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)

The case had been rejected by Justice Souter, the Justice who presides over that circuit, before it was refiled with Justice Thomas, who opted to refer it to the Court at-large. It was rejected by the Court in conference last Friday. Note that the case was submitted to the court on the eve of the election.

Here is what the docket reads:

Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
Nov 14 2008 Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008 DISTRIBUTED for Conference of December 5, 2008.
Nov 19 2008 Application (08A407) referred to the Court by Justice Thomas.
Nov 26 2008 Supplemental brief of applicant Leo C. Donofrio filed. (Distributed)
Dec 1 2008 Letter from applicant dated November 22, 2008, received.

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)
• President Obama and the Future of the Supreme Court (December 4, 2008)

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.

Related posts

• 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:

Related posts

• Updated Humor Statistics (March 7, 2008)
• The End Of The World OR John Roberts Is The Silent Type (July 1, 2007)
• Supreme Introductions (December 20, 2008)

[Justice Souter asks a question]
MR. SUTHERS: Justice Ginsburg, 1920 —
JUSTICE SOUTER: I’m greatly flattered.
(Laughter.)
MR. SUTHERS: Justice Souter, Justice Souter, sorry. Justice Souter.
JUSTICE SOUTER: You’re not the first to have done that.
(Laughter.)

Justice Souter is right- the exact same thing happened last May during arguments. Lawyers get caught up in the moment and make mistakes with some frequency, but it seems odd that the same mistake would happen twice in as many years. Interesting.

Related posts

• Who Is The Funniest Justice? (November 10, 2007)
• Which Justice Will Author The Medellin Opinion? (March 19, 2008)
• What Can Dems Do About A Conservative SCOTUS? (July 29, 2007)

The Court issued a Per Curiam opinion and Justice Stevens wrote a dissenting opinion that was joined by Justices Souter and Ginsburg.

Related posts

• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)
• Supreme Court Upholds Application of Lethal Injection (April 16, 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.

Related posts

• Footnotes in Supreme Court Opinions (December 19, 2008)
• Supreme Introductions (December 20, 2008)
• Unity Defined (June 11, 2007)