Tuesday, September 15, 2009

Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining?

Dissents are fascinating. Much more so than majority opinions. At least insofar as what they tell us about the individual Justices.

Who's Dissenting & How Often?
Number of Written Dissents

Dissenting opinions, much more than majority opinions--and infinitely more than unanimous ones--are personal statements of the author. They represent matters that are sufficiently important to the dissenter that the Justice feels compelled to take the Court to task openly, feels compelled to specify the irreconcilable disagreement that has instigated the public protest, and feels compelled to explain why the disagreement is so significant.

So the dissenting opinions tell us a good deal about the author. And, they also tell us a good deal about the Court as a whole. They tell us about the disagreements that are actually dividing the Justices and about which we would not otherwise know. The actual disagreements which would otherwise be concealed. The disagreements which would otherwise be glossed over--i.e., avoided or "fudged"--in a unanimous decision.

As Herman Pritchett would say, these dissenting opinions--and the resulting divided (non unanimous) decisions--allow us to peek into the "inner sanctum" of the Justices' deliberations and discussions about the issues. They allow us to see what we otherwise would not. So they reveal a great deal about the Court. And even more profoundly and personally, about the dissenting Justice.

For this first New York Court Watcher post reviewing the Supreme Court's last term, let's start to look at the dissents. For now, let's just look at how many dissenting opinions were written by each Justice. How many times did each Justice feel compelled to write about his or her disagreement with the majority of the Court. Not how many times each Justice voted in dissent--whether writing or joining a dissenting opinion. (We'll get to that later.) But how many times each Justice actually wrote and signed an opinion saying, in effect, "My colleagues are wrong on this matter which is simply too important for me to be silent."

As depicted in Graph 1, there is a wide range of difference among the Justices in the number of dissenting opinions they each wrote last term. Beginning with the first 2 Justices on the graph, Chief Justice John Roberts and Senior Associate Justice John Paul Stevens, the contrast is stark. Stevens wrote nearly 3 times as many dissents as did Roberts: 17 to 6.

Fascinating and revealing. Why? Well consider these facts alone. Roberts is quite conservative and, as Chief, he is the leader (at least formally) of the conservative Justices on the Court; Stevens, being the Senior Associate, holds the same position among the Court's liberals. The leader of the conservatives wrote only 1/3 as many dissents as the leader of the liberals. Stated otherwise, the leader of the liberals publicly protested the Court's decisions 3 times as frequently. That is probably a darn good indication that the liberals had more to complain about than the conservatives. That the latter might well have had a much more successful year than the former.

Let's explore that just a bit more. In Graph 1, the Justices were ordered according to seniority. If that graph is reorganized so that the Justices are ordered in ascending number of written dissents, some things become even clearer. Indeed, some very interesting facts emerge. Facts suggesting some disturbing patterns for liberals. Lat's look at the reorganized graph.

Who's Dissenting & How Often?
Number of Written Dissents

(in ascending order of dissents)
Not surprisingly, swing-vote Justice Anthony Kennedy wrote the fewest dissenting opinions. As we've seen in past years, he is in the majority more frequently than any of his colleagues. In fact, especially in the hot-button cases where the Court is deeply divided, he is usually the Justice whose vote makes the majority. He's usually the 5th vote for the 5 to 4 majority.

But beyond Kennedy is what is very interesting and what suggests something disturbing for liberals. Look at the Justices who dissented the least last term. Other than Kennedy that is. As depicted in Graph 2, they are Roberts, then Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The Court's 4 staunch conservatives. They were the ones who felt compelled to dissent the least often.

At the other end of the spectrum--ideological as well as dissent frequency--are Stevens, then Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg. The Court's 4 fairly reliable liberals. They are the ones who dissented the most. They are the ones who most frequently felt compelled to openly disagree with decisions of the Court. They are the one's who protested the most, while the 4 conservatives protested the least.

The suggestion in that is strong. It certainly reinforces the initial indication mentioned previously when the dissent records of Roberts and Stevens were contrasted. It would certainly seem that the conservative Justices likely had a much better year at the Court than did the liberals. They certainly didn't write as many dissents as the liberals.

Well, we'll look more closely at the patterns and trends in subsequent posts.

In the next post on New York Court Watcher, we'll look at the total number of dissenting votes for each Justice. How many times each Justice took sides against the Court's decision, whether by writing a dissenting opinion or joining one (i.e., voting in favor of one) written by a colleague. Chances are, the results will be similar to what we saw here. But we shall see.