Supreme Court: Chief Justice Roberts--Another "Uniter, Not Divider"?

(This is a break from the posts on criminal leave applications at the New York Court of Appeals. New York Court Watcher will return to that series in the next post.)

Chief Justice John Roberts wanted more harmony at the Court. At his confirmation hearings, he decried the division that prevails among the Justices in rendering decisions. Too much disagreement. Not enough speaking with one voice.

It has now been 4 years. Roberts assumed the helm of the Court in 2005, a few days short of the first Monday in October. Just in the nick of time to preside over the entire 2005-2006 term. That term and 3 others have now passed with Roberts in the center seat. So how is he doing?

At the least, how successful has the Chief Justice been in reducing the division at the Court? At getting the Justices to come together, to agree on resolving the difficult and, yes, divisive issues that confront the Court? Well....

Let's take a look at the number of divided decisions, the ones with a dissenting opinion, for each year--each term of Court--since Robert's took over as the Chief.
GRAPH 1
Decisions With Dissent Under Roberts
OCT05 thru OCT08 Terms
(click to enlarge)
As Graph 1 makes clear, divided decisions have been steadily rising through the four terms of the Roberts Court. For the October 2005 term (i.e., Fall 2005 - Spring 2006), Roberts's first year as Chief Justice, decisions with dissent numbered only 41. For the October 2008 term, the fourth and most recently completed term, the number had climbed to a high 61.

Divided decisions in Chief Justice Roberts's first term were "only 41" only in the sense of being lower than any of the three years that followed, and being somewhat lower than the number in any of the four previous terms under Roberts's predecessor, William Rehnquist. And divided decisions in Roberts's fourth (last) term were "a high 61" in the sense not only of being the highest in his four terms, but also higher than in any of the previous four terms under Rehnquist.

Let's take a look at those previous four terms under William Rehnquist--last four years of the Rehnquist Court, 2001-02 through 2004-05.
GRAPH 2
Decisions With Dissent Under Rehnquist
OCT01 thru OCT04 Terms
(click to enlarge)
(Does anyone appreciate the cactus green--used for the Rehnquist years in honor of the late Chief's beloved home state of Arizona? I, at least, kind of liked that.)

As shown in Graph 2, decisions with dissent hovered around 50 throughout Chief Justice Rehnquist's last four terms. They never went as low as the 41 in Robert's first term. But neither did they reach as high as 61 as they did in Roberts's last.

Indeed, divided decisions seem to have levelled off at around 50 in the Rehnquist Court. There has been, as yet, no such apparent levelling under Chief Justice Roberts.

Let's merge these first two graphs for a closer visual comparison.
GRAPH 3
Rehnquist Ct. vs. Roberts Ct.
Decisions With Dissent
(click to enlarge)
(I hope someone also appreciates this multicolored graph. It took me almost as much time to figure out how to do this and put it together as it did to do the research it represents!)

Graph 3 reflects virtually everything previously discussed. A couple of extra points are made clear as well. First, the averages for the Rehnquist and Roberts Courts are virtually the same. In fact, the average is slightly higher for the first four terms with Roberts as Chief than for the last four terms with Rehnquist.

But much more significantly, the second point, is that divided decisions have not declined under Chief Justice Roberts. Despite his expressed preference and intent at the confirmation hearings, he has not been successful in reducing division--except perhaps for a brief honeymoon period in his first term.

None of this is to blame Roberts or attribute any responsibility to him. Considering the difficult, controversial, policy and ideology laden issues that come before the Court for resolution, it would be rather surprising--no, astonishing--if there were a high degree of unanimity.

Affirmative action, abortion, church and state separation, presidential war powers, campaign finance, gun rights, rights of the accused, the death penalty, gay and same-sex rights, government taking of private property, federal power versus states rights, etc., etc., etc. Take any nine intelligent, informed, concerned humans and ask them to resolve these issues. How much unanimity would you expect?

If one believes that the work of judicial decision-making is akin to finding the best dictionary definition of words in legal texts--which, admittedly, the most naive and self-deluding judges and politicians do seem to think--then frequent unanimity might be expected. But even a slightly more honest and mature understanding of the judicial process would make it pretty obvious that unanimity, like certainty, would be the exception not the rule.

Yes, historically, there have been times when unanimity reigned. In the early years of the Republic, the great Chief Justice John Marshall exerted such command over his colleagues that he was usually able to secure unanimous rulings. And this despite the controversial and far-reaching nature of his Court's decisions--most of which he himself authored.

Indeed, Marshall's seemingly iron control over the Court infuriated Thomas Jefferson who complained about it to his own appointee, William Johnson. In reply to a letter from Jefferson, Johnson explained that his colleagues on the Court were simply unwilling and incapable of challenging Marshall. As he wrote:

"Cushing was incompetent, Chase could not be got to think or write—Patterson was a slow man and willingly declined the trouble, and the other two judges you know are commonly estimated as one judge.” Letter from William Johnson to Thomas Jefferson (Dec. 10, 1822)

Another historic example of unanimity, albeit in one case, was the Court's decision ending racial segregation in Brown v. Board of Education. In that 1954 ruling, the new Chief Justice, Earl Warren, was able to secure the assent of all his colleagues, despite the serious reservations and resistance of some of them. And despite the urgings of law clerk William Rehnquist who tried to persuade the Justice for whom he worked, Robert Jackson, to vote to retain the "separate but equal" doctrine.

As Rehnquist wrote in his memo to Justice Jackson, complaining that ending segregation would be injecting the Justices' "own sociological views into the Constitution":

"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think that Plessy v. Ferguson [the 1896 decision upholding racial segregation and approving "separate but equal treatment" of the races] was right and should be affirmed." As quoted in John W. Dean, THE REHNQUIST CHOICE (2001).

Fortunately, the "liberals" on the Court succeeded in illicitly forcing their own idiosyncratic "sociological views" upon the country. The Court condemned racial segregation as a violation of the Constitution's promise of equal protection of the law. Justice Jackson, of course, agreed with the Court's decision and, as already noted, Chief Justice Warren was ultimately able to secure a unanimous vote.

But such unanimity is not typical in the tough decisions made by the Court. And Chief Justice Roberts has not been able to reduce what is typical, the decisions with dissent. As a final visualization of the continued division at the Court, let's conclude this post with one last comparison of divided decisions under Rehnquist and Roberts.
GRAPH 4
Rehnquist Ct. vs. Roberts Ct.
Decisions With Dissent--4 Year Totals
(click to enlarge)
As depicted in Graph 4, the total number of decisions with dissent was slightly higher in the first four terms since Roberts became Chief than it was for the last four terms under Rehnquist. To be sure, the increase is entirely insignificant.

But again, what is significant is that there has been no decrease of division at the Court. This, despite Roberts's stated aspiration and, one would thus assume, his efforts.



(Note: In determining the number of decisions with dissent, I have included all the decisions rendered by the Court in which there has been a dissenting opinion. These include decisions on the merits as well as other, more summary decisions. For example, some of the Court's decisions on petitions for certiorari have generated dissenting opinions. These have been included in my tabulations. Figures that might be used elsewhere, by myself or others, that count only decisions with full opinions on the merits, are usually somewhat different.)

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 2: Not Just Averages, But Year By Year)

Averages can be misleading. They do not necessarily reflect what is typical. One or more aberrational figures in a series--unusually high or unusually low--can distort the resulting average. Indeed, an average can be entirely unlike any figure in a series. 50 is the average of a series of six figures containing three 100's and three 0's and, yet, is much different than any figure in that series.

So...let's take a closer look at the averages that were the focus of the last post on New York Court Watcher. In that post, part 1 of this series, we looked at the average rates at which criminal appeals to New York's highest court were granted in two 5-year periods, 1988-1992 and 2004-2008.
GRAPH 1
Criminal Appeals Granted
1988-92 vs. 2004-08(click to enlarge)

As reproduced here from that first post, Graph 1 depicts what we discussed then. There certainly seemed to be a precipitous decline in the number of criminal appeals granted from that earlier 5-year period to the more recent one. (Recall that those 5-year periods were chosen because the most recent one--the 5 most recent complete calendar years--also happened to be the last 5 years of Chief Judge Judith Kaye's tenure. For some sense of symmetry, the earlier period chosen was the last 5 years of the tenure of Kaye's predecessor, Chief Judge Sol Wachtler.)

But, one might say, that apparent decline was based on averages. As we just discussed, averages can be misleading, atypical, unrepresentative, etc. It might be that the only thing actually differentiating the two five year periods is a couple of aberrational years--unusually high in the earlier period and unusually low in the recent one.

Well yes, that might be. But it isn't. In this case, the averages turn out to be quite representative. Let's take a look.
GRAPH 2
Criminal Appeals Granted
2004-08 (year by year)(click to enlarge)


As depicted in Graph 2, the average rate at which criminal appeals were granted over the recent 5-year period, 2004-2008, is actually very reflective of the rates for the individual years. The rate for each year remained about the same, never straying too far from the approximately 2% that turned out to be the average.

So ~2% (or 2.1% to state it exactly in terms of the average) is the rate at which criminal appeals to the Court of Appeals were granted in each of the last 5 calendar years.

Now let's take a look at the earlier 5-year period.
GRAPH 3
Criminal Appeals Granted
1988-92 (year by year)(click to enlarge)


As depicted in Graph 3, the average rate for the earlier 5-year period--like the average for the recent period--turns out to be very representative. The rate for each of the 5 years is similar to the average. During the last 5 years of the Wachtler court, 1988-1992, criminal appeals were being granted at a rate of approximately 4% (or 4.1% to again state it exactly in terms of the average).

Yes, there was apparently some variation in the rates during that earlier 5-year period. But there was no wild fluctuation, no dramatic rise or drastic plunge. Certainly none that was sustained. Certainly none that was similar to the drop between this earlier 5-year period and the recent one. None that was even close.

Let's take another look at that drop. This time, let's look at it by contrasting the 5 individual years of the earlier period with the individual years of the recent one.
GRAPH 4
Criminal Appeals Granted
1988-92 vs. 2004-08 (year by year)(click to enlarge)


Graph 4 makes the drop quite vivid. But, of course, it was a drop that resulted in criminal appeals being granted at half the rate they formerly were. Now that's a drop. Not a mere happenstance.

No wonder lawyers, court observers and even judges were complaining.




In the next post we'll take a look at the actual numbers. Thus far we've looked at rates. Let's also examine the actual numbers of criminal appeals granted. After that, we'll look at the Judges themselves, their records--i.e., the differences among the Judges in how often they have been granting criminal appeals. Following that, we'll look at when the rates dropped and what was happening at the time. We'll also look at how the rates have changed again, in the last few months, under Chief Judge Jonathan Lippman. And finally, we'll look to see if and how much the individual Judges' records on granting criminal appeals might have changed during this time.

[Note again: The data used in the New York Court Watcher posts are derived from numerous searches on Westlaw and Lexis-Nexis. I did not rely on the data provided in the Court of Appeals' official annual reports. My calculations and conclusions are drawn from data which I independently researched.]

NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 1: Overview)

(For the last few weeks I've been occupied doing research on a few projects. Some of that will be reflected in the series of posts on New York Court Watcher that begins with this one.)

In recent years, New York's highest court drastically reduced the number of criminal cases it agreed to review on appeal. The Court of Appeals actually cut in half the rate at which it accepted criminal appeals.

There has been grumbling about how few criminal cases the court has been willing to hear. Criminal lawyers, court observers, and judges have been complaining that the Court of Appeals became very stingy in granting criminal leave applications. (These "leave applications," or "CLA's," are motions requesting the Court of Appeals to review the decision rendered by the appellate court below. Each CLA is decided by one Judge. Yes, one Judge. More on the implications of that in a subsequent post in this series.)

It turns out that the grumblers have been on to something. Take a look.
GRAPH 1
Criminal Appeals Granted
1988-92 vs. 2004-08(click to enlarge)


Graph 1 depicts the average rate at which criminal appeals were granted over the last 5 calendar years and the corresponding rate for an earlier 5 year period. The last 5 calendar years, 2004 through 2008, happen to be the last 5 years of Chief Judge Judith Kaye's tenure on the court. So, for an earlier 5 year period, 1988 through 1992 seemed to be as felicitous as any other--they happen to be the last 5 years of the tenure of Chief Judge Wachtler, Kaye's predecessor. And look at the contrast.

The rate at which criminal appeals were granted in earlier years was twice as high as it has been more recently. The average rate of more than 4% of CLA's granted in the last 5 years of the Wachtler court dropped to just little more than 2% in the waning years of the Kaye court. Obviously, something happened. It's difficult to believe that such a drastic drop--a cut in half--could have happened inadvertently or unconsciously. (More about that in subsequent posts as well.)