Monday, February 21, 2011

Supreme Court: Highlights...(Part 16--Full Disclosure in Graphs: My Hypothetical Voting Patterns)

This post continues and concludes my full disclosure cum self-therapy and self-awareness. I've collated the Justices' votes, added my own hypothetical ones, and depicted the resulting patterns graphically.

Without delay, here goes. Which Justices would I have voted with the most, and which the least? The graph:
Voting Agreement and Disagreement

(click to enlarge) 

Yes, I would have voted with Chief Justice Roberts the most! In the "Top Ten" highlight cases of the Court's last term, I would have voted with Roberts more than anyone else. Well, tied with Justice Kennedy. I'm not too surprised about Kennedy. But Roberts?

Kennedy the swing vote, OK. But Roberts, the Rehnquist-protege conservative? Well, I've double checked the numbers and they're accurate.

And I actually agreed with the Court itself in a full 7 out of 10 of the cases! What can I say. I'm surprised. (Disappointed?)

In any event,  here's the same data in a less cluttered graph:
Voting Agreement

(click to enlarge)

I apparently agreed with each of the remaining 7 Justices to nearly the same extent. Justices Ginsburg, Breyer, Alito and Sotomayor just a bit more than Stevens, Scalia and Thomas.

Now, let's reorganize the Justices on the graph into ideological camps.
Here's what my hypothetical votes look like aligned with the Justices separated into ideological camps--i.e., politically conservative and liberal, plus swing-voter Kennedy. Also, the graph depicts my average agreement with the Justices in each camp.
Voting Agreement with Ideological Camps

(click to enlarge)

So, my hypothetical votes align me with the conservative Justices and the liberal Justices equally. Stated otherwise, I agreed with the conservative and the liberal camps to the same average extent in the 10 highlight cases. (The reason the numbers are 4.75 vs 4.75 instead of 5 vs 5 is that I agreed with Roberts in a case in which he split the difference between the 2 camps.)

OK, this is not what I would have guessed. But reviewing my hypothetical votes in each of the 10 cases, as disclosed and depicted pictorially in the last post in this series, it probably shouldn't be too much of a surprise. (See Supreme Court: Highlights...(Part 15--Full Disclosure in Pics: How I Would Have Voted ), Feb. 7, 2011.) 

I did agree with the conservative Justices on campaign finance (Citizens United), the Christian Cross (Salazar), Miranda waiver (Thompkins), and gun rights (McDonald). I agreed with the libs on teaching human rights to "terrorist" groups (Humanitarian Law Project), anti-discrimination protection for gays (Christian Legal Society), televising the same-sex marriage trial (Hollingsworth), the right to effective counsel on immigration status (Padilla).

I agreed with the libs, joined by 2 conservatives, in salvaging the "honest services" law as limited to bribes and kickbacks (Skilling). And I agreed with Roberts alone in restricting, but not outlawing, life-without-parole for juvenile-committed crimes (Graham). So the numbers do accurately reflect the level of my alignments with the conservative and liberal Justices.

Now, where would I fall on the judicial restraint versus activism spectrum? Here's that graph:
Voting Restraint and Activist

(click to enlarge)

In the 7 cases involving the constitutional validity--or not--of legislative enactments, my hypothetical votes were half and half. Apparently, not much of a restraintist or of an activist.In that regard, I'm not much different than any of the Justices--regardless of the avowed commitment to restraint on the part of some of them. (Stevens was the least deferential to lawmakers in the highlight cases. But none of the Justices, conservative or liberal, demonstrated any real commitment to restraint in the sense of deference to the lawmakers.)

Finally, let's look at voting like a conservative Republican politician or a liberal Democratic politician.

Apparently, I'm not a particularly strong ideologically conservative Republican. [I would never have thought that.] But neither am I a particularly strong ideologically liberal Democrat. [I might have thought I was somewhat that.]. Here's what the numbers show:
Politically Conservative vs Politically Liberal

(click to enlarge)


All of the Justices--except perhaps for swing-vote Kennedy--did vote very strongly along politically conservative or politically liberal lines. My hypothetical votes would not place me in either camp. Slightly more politically liberal than conservative. But not consistently liberal or conservative. [Not principled? Or, I would prefer, not unduly rigid!] 

So there it is. My liberal friends [with whom I DO feel more psychologically and emotionally aligned] may well be disappointed in me. My conservative friends [whose company I often enjoy even more] may think I'm not entirely hopeless.

But regardless, there I am. The late Justice William O. Douglas would likely not approve my apparently wishy-washy liberal hypothetical-voting record. But I think he would approve this full disclosure. (Again, see William O. Douglas, Law Reviews and Full Disclosure, 40 Wash. L. Rev. 227 [1965].)