Wednesday, May 28, 2014

(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)
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.

The 1 exception? The Fisher v. University of Texas case that involved racial preferences in college admissions. In that case, the 5 Republican Justices supported strict equal treatment--i.e., they opposed the racial preferences, which just so happen to benefit Racial Minorities. Sotomayor and Kagan, as well as Breyer, joined the Republicans, at least to the extent of restricting those racial preferences. (Only Ginsburg dissented to permit racial preferences more liberally.)

Speaking of benefiting Racial Minorities, what are Sotomayor's and Kagan's records regarding support for positions that actually benefit Racial Minorities? Let's see.
In each of the divided cases in which they participated--again, 5 for Sotomayor and 4 for Kagan--they supported the position that would protect or otherwise benefit Racial Minorities, except for one. As just noted, that was the Fisher case in which they joined the Republican Justices to restrict racial preferences in college admissions. In every other case, Sotomayor and Kagan supported whatever measure or lawsuit or other position would benefit Racial Minorities.

The significance of this, despite the small sample of cases, is underscored by the contrast with the voting of other Justices. While Sotomayor and Kagan voted in support of the position that benefited Racial Minorities in every case in which they participated but one, the 5 Republican Justices all voted against that position in every one of those cases.

In fact, as depicted in graph 2, even when considering all the racial discrimination cases decided in the Roberts era--before as well as after Sotomayor's and Kagan's appointments--the 5 Republican Justices rarely voted for the position that benefited Racial Minorities. And as we've seen in previous posts, Scalia and Thomas never did. The contrast with Sotomayor and Kagan (as well as with the other Democratic Justices) could hardly be greater.

Finally, and solely for the sake of completion and consistency with how we've reviewed the records of the other Justices in previous posts, here's a graph depicting Sotomayor's and Kagan's records of support for complaints brought by Whites and those brought by Racial Minorities--even though based on an insignificant number of cases.
Graph 3 reflects Sotomayor's and Kagan's participation in only 3 cases involving complaints brought by Whites--unanimous as well as divided. They both supported the White complainant in 2 of them (i.e., a unanimous decision about redistricting, and the 8-1 Fisher case on racial preferences in college admissions), and opposed the White complainant in 1 (i.e., dissenting in the 5-4 decision that invalidated part of the Voting Rights Act). Not much can be gleaned from that sample--at least not when viewed in isolation.

On the other hand, despite the small sample of Racial Minority complaints on which they voted--4 for Sotomayor, 2 for Kagan--they both sided with the Racial Minority complainant every time. Additional significance is lent to their voting in those few cases when we consider how the 5 Republican Justices voted. Every one of them opposed the Racial Minority complainant in every one of those cases but one--a unanimous decision on employment discrimination.

Let's now confine ourselves to the non-unanimous cases.
In the divided cases involving Racial Minority complaints in the Roberts era, Sotomayor participated in 3, Kagan in 2. As we just saw, they both voted to support the Racial Minority complainant in every case in which they voted, whether unanimous or non-unanimous. As we've seen in earlier posts, and as depicted in graph 4, the other 2 Democratic Justices, Ginsburg and Breyer, sided with the Racial Minority complainant in every divided case in the Roberts era--both before and after Sotomayor and Kagan joined the Court.

As we've also seen in earlier posts, the 5 Republican Justices typically voted against the Racial Minority complainant. Indeed, in the non-unanimous cases, Roberts and Alito rarely supported the Racial Minority complainant; Scalia and Thomas never did. As for the divided cases in which Sotomayor and Kagan participated and voted in support of the Racial Minority complainant, the 5 Republican Justices opposed the Racial Minority complainant in all those cases.

In short, although the samples of cases in which Sotomayor and Kagan voted are relatively small, they do provide some fairly clear insights. This is especially true when their records are compared with those of the other Democratic Justices and contrasted with those of the Republicans on the Court.

In a few words, Sotomayor's and Kagan's records both evince strong support for positions that benefit Racial Minorities, strong sympathy for complaints brought by Racial Minorities, and strong support for anti-discrimination measures.

In the interest of full disclosure, in the next post in this series--and, perhaps the final one--I'll disclose what my own voting record would be and graph that hypothetical voting alongside the Justices' records.