(Part 12--Summary w/ Update) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Before disclosing my own hypothetical voting, perhaps it makes sense to offer a quick recap. And we'll update the figures to include the recent decision in Schuette v. Coalition to Defend Affirmative Action, where the divided Court upheld a Michigan law prohibiting racial preferences in college admissions. So the updated summary now, and next post we'll do my full disclosure.

For this recap, let's reorganize the graphs a bit. They've probably become a bit too cluttered. Also, let's update the data thru May 2014. The figures and graphs will now reflect all the Court's decisions involving issues of racial discrimination, from the time John Roberts became Chief Justice in September 2005 to the present day. [The pool of cases is further described at the end of this post.]

So here is a summary of the Court's decisional record and the Justices' voting. We'll begin with those cases brought by White complainants--whether they were claiming to be victims of racial discrimination, or objecting to racial preferences for Minorities, or otherwise arguing that some race conscious or remedial policy adversely affects them.

(click graphs to enlarge)

GRAPH 1

There it is. The Court itself, as well as all 5 Republican Justices, supported every complaint about racial discrimination brought by Whites. The Democratic Justices voted to uphold the White complaints much less frequently. [N.B., the newest Justices, Sonia Sotomayor and Elena Kagan, participated in only a small number of these cases, so the figures for them may well be misleading.]

Let's contrast that with the Court's and Justices' records in cases where those complaining were Racial Minorities.

GRAPH 2

Well that's different!

(Part 11--Sotomayor's & Kagan's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama, are the Court's newest members. Sotomayor joined the Court in August 2009. Kagan in August 2010. Consequently, unlike the other Justices whose records we have already reviewed, Sotomayor and Kagan have participated in only a few of the racial discrimination cases decided by the Court under Chief Justice Roberts.

Sotomayor has participated in only 7. Kagan in only 5. That's not much of a record for either Justice. Indeed, the sample is simply too small to tell us anything meaningful for some of the categories of voting we've been considering.

On the other hand, for some categories, the voting patterns for Sotomayor and Kagan are so consistent and so clear that even the relatively small samples are revealing. Let's take a look.

We'll begin with voting on what I've been categorizing as "racial equal protection." As explained in previous posts, this category of voting reflects the degree of support for equal treatment regardless of race--e.g., support for measures to eliminate unequal treatment, whether racial discrimination or racial preferences; support for the enforcement of equal rights and benefits; support for strict equal treatment regardless of whether Whites or Racial Minorities favor the result or may be the beneficiaries in any particular case.

(click graphs to enlarge)

GRAPH 1

The figures depicted in graph 1 reflect voting in 5 non-unanimous cases for Sotomayor, and 4 for Kagan. Notably, although the samples are relatively small, both Justices voted in support of strict equal treatment in every one of the cases in which they participated. These involved enforcing voting rights protections, supporting racial discrimination lawsuits, enforcing laws against retaliation, and prohibiting racial preferences in college admissions absent the showing of a compelling need.

Notably also, in all of these cases but one, the Court was divided 5-4, with the 5 Republican Justices on one side and the 4 Democratic Justices--including Sotomayor and Kagan--on the other. Stated otherwise, in every one of those cases but one, the 5 Republican Justices opposed the enforcement of equal treatment; the 4 Democratic Justices supported it.

(Part 10--Alito's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Not quite Scalia or Thomas.
Far different from Ginsburg and Breyer.
Not Kennedy either.
But identical to Roberts.
Justice Alito's record and theirs, that is.

White complainants win Alito's votes.
Racial Minority complainants, not so frequently. But more often then they win Scalia's or Thomas's vote.
Those advocating simple equal treatment--i.e., race neutrality, color-blindness, same rights regardless of race--have won his vote about half the time.
Those advocating more specifically for the protection of Racial Minorities have not fared well with him.

Let's look at Alito's record graphically.

(click graphs to enlarge)

GRAPH 1

 As shown in graph 1, Justice Alito--just like the other 4 Republicans on the Court--has voted in favor of the White complainants in every case involving an issue of racial discrimination. By contrast, he usually voted against Racial Minority complainants--again, like the other Republican Justices.

Now, to sharpen the focus, let's limit our consideration to those cases that resulted in non-unanimous decisions.

GRAPH 2

In those closer cases where the Justices were divided, Alito's voting in support of complaints brought by Racial Minorities drops to 29%. His record contrasts sharply with that of Ginsburg and Breyer who voted for the Racial Minority complainant in every one of those cases.

(Part 9--Breyer's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Now for Justice Stephen Breyer.

Like Justice Ginsburg, whose record we looked at in the immediately preceding post, Breyer is a President Clinton appointee. Meaning? A Democrat, and much more ideologically liberal than the Republican appointees on the Court.

So we would certainly expect that his voting has been more protective of Racial Minorities than that of Chief Justice Roberts and that of Justices Scalia, Kennedy, and Thomas, who we have focused on previously in this series. Let's see if Breyer's record bears that out. Take a look.

(click graphs to enlarge)

GRAPH 1

Breyer voted to uphold complaints brought by Whites (43% of the time) less frequently than did the Republican Justices (100%). But he did vote with them in Fisher v. University of Texas to require the strictest scrutiny of racial affirmative action in higher education admissions. That is, any racial preference can only be justified by proof of a compelling necessity. Breyer thus split, in that case, with Justice Ginsburg who dissented.

As for upholding complaints brought by Racial Minorities, Breyer's record is identical to Ginsburg's. His voting, like hers, evinces far greater support for the claims involving issues of discrimination suffered by Racial Minorities than that of any of the Republican Justices. And far greater support for complaints brought by Racial Minorities than for those brought by Whites.

Let's now zero in on those closer cases in which the Justices can't agree and must choose sides. Those cases that provide the insight gained from exposing the actual divisions on the Court that unanimous decisions conceal. Here, then, Breyer's record in the divided cases.