I have often opined– before this blog was up, unfortunately, and thus not easily linked– we are very lucky in the composition of the Supreme Court just now. I feel like we have a good balance of liberals and conservatives, of pragmatists and ideological purists. Moreover, the Congress has gotten precisely what they bargained for with CJ Roberts. He really has striven to craft narrow opinions achieving unanimous approval. Two thirds of the 73 cases fully disposed of in the session just ended were unanimous, a thing not seen since the 1940’s.
The bald statistics are fairly impressive. (The Scotusblog StatPack for the term is now published; for the following numbers, a recused justice is counted in the majority.) A total of 73 cases (not counting 7 more either dismissed as improvidently granted, dismissed, or vacated and remanded) were fully disposed. Of those cases, an astonishing 66%, or 48 total, were unanimous decisions. Two more went 8-1 (3%), 7 were 7-2 (10%), 6 went 6-3 (8%), and a mere 10 (14%) were 5-4. This is, as I observed above, more than a bit unusual. More importantly, the Court split on ideological lines in the 5-4 decisions only 60% of the time, 6% below average; and a conservative majority (Roberts, Scalia, Kennedy, Thomas and Alito in the majority) happened only 67% of the time in the 5-4 splits, just 3% greater than the average over the last 10 years. The Court enjoyed 6 different majoritarian alignments over the course of the term, about average.
The Court has been rather catholic in taking cases this past term; they can not be accused of failing to take the hard ones. This session, the Court has dealt with Separation of Powers, Copyrights, Fourth (Search and Seizure) amendment, First (Religious Freedom) amendment, EPA pollution regulations, Capital Punishment, Securities Fraud, Unions and Affirmative Action, among other things. Perhaps more interesting is on what they stood together, and where they disagreed. Most of the united decisions were minor things of a technical nature; the bread and butter of courts in general, but booooooooo-ring to observers. Still, they managed to come together on a couple of fairly important matters; specifically searches of cellphones (get a warrant, bubba, or it’s “bad cop, no donut”) and recess appointments (which really was gross overreach). I tend to agree with most of those decisions split along ideological lines, save they didn’t go far enough (OK, 67% of them, the conservative ones). It’s just an opinion, but I would have said if anybody was playing politics on the court the blue ribbon has to go to the liberal wing, spiritually headed by Mme. Justice Ginsburg. Lefties, naturally, don’t see it that way. They’re spoiled, you see, by a long string of solidly leftish Courts dating back to at least Burger’s day, and they tend to believe the function of the Court is to achieve liberal victories the libs don’t have the political power to get on their own. This attitude is both unfortunate and wrongheaded, but that’s how they roll, and they do not take defeat lightly.
Don’t get me wrong, I love Auntie Ruth. She’s a magnificent wordsmith, the kind of writer the Court hasn’t seen since Oliver Wendell Holmes. Reading one of her opinions (don’t be afraid of reading the opinions, they’re written in English and you can skip over all the legal bumf and assume they got that part right as that’s what Supreme Court Clerks are for) is like flying on a rhetorical magic carpet– that just happens to be on a nuke bombing run, usually over the rest of the Bench. She’s a treat, Ruth Bader Ginsburg, a living doll; more fun than a barrel of monkeys. I don’t agree with her much, she’s wrong on point just about all of the time, but boy, oh boy, is she ever worth reading. I hope she lives a long, long time, even though she tends to vote against the Constitution as written, because I can’t imagine where we’re going to find a replacement. Genius like that is hard to come by. It lies where you find it; it can not be grown, or made.
All in all, I would say the Court had a useful and productive term, but they really didn’t do anything earth shattering. Many on the left will not agree, particularly with the defeats they took in campaign finance, unions not being allowed to force membership and the contraceptive mandate. Even so, it is not possible to argue any of this was particularly surprising. The Court has well foreshadowed all of the decisions they have taken this term. Campaign finance– anything at all to do with the First amendment, really– has been moving in the libertarian direction for two decades now. Ditto religious freedom, and we had two largish cases thereon I will discuss in greater detail later. And the unions have suffered a number defeats lately, both political and judicial. One wonders when they will finally figure out their days of living in the back pocket of the Democrat party are numbered?
This post is the first in a series where I will get a bit deeper in the weeds on what the cases were about, how they were decided, and why I think this is important.