Splinters in the 6-3 Supreme Court (Part 1: Amy Coney Barrett)

In the last few months, I've been busy with lectures (CLEs and other presentations) on the Supreme Court and the New York Court of Appeals. I thought I'd share here on New York Court Watcher some of what my research in preparation for the presentations revealed--or simply confirmed--about the Supreme Court. [I've previously shared much of what I found about changes at the New York Court in a host of earlier posts. See e.g., Part 6, Who's Dissenting?--NYCOA: The Wilson Uptick]

Let's start with Justice Amy Coney Barrett. Her appointment by former President—and now President-Elect Donald Trump—turned a previously 5-Conservative versus 4-Liberal balance on the Court into a 6-3 one. Her replacement of the deceased liberal Justice Ruth Bader Ginsburg had dramatic ramifications.

[Regarding the terms liberal and conservative, see below at *.]

(click to enlarge for a better view)

Yes, an ideological change was certainly to be expected in voting and in the Court's overall decisional patterns. The numbers show that the change, especially in voting, was indeed nothing short of drastic—for good or bad. Take a look at the following graphs.

This first one shows the politically conservative [see below at *] voting record of each Justice and the decisional record of the Court as a whole in the last term, 2019-2020, with Justice Ginsburg still on the Court.

(click to enlarge for a better view)

As shown, in cases where there was a clear politically conservative position on the issue and a clear politically liberal one, the Court's decisional record was virtually 50-50. Nevertheless, the division between the conservative and liberal Justices was stark. For example, the most moderate conservative Justice, Chief Justice Roberts, voted almost four times as conservatively as the most moderate liberal Justices, Kagan and Breyer.

At the extreme ends of the Court's political spectrum were Justices Alito and Thomas on the conservative side, and Justices Sonya Sotomayor and Ginsburg on the liberal one. Those two sides virtually never supported the politically opposite position.

Regarding Justice Ginsburg herself, she voted for the politically conservative position only 4% of the time. In other words, her record was 96 to 4, liberal to conservative.

Let's now take a look at the voting and decisional records for the very next year, the 2020-2021 term, with Justice Barrett in place of Justice Ginsburg. 

(click to enlarge for a better view)

As shown in this graph, the Court's decisional record was decisively more politically conservative than it was the year before—62% compared to 48%. The political division between the conservative and liberal Justices continued to be extremely stark—e.g., Roberts's 68% conservative voting to Kagan's 18%. 

And not surprisingly, the major difference was Justice Barrett. While Justice Ginsburg's record the year before was 4% conservative, her replacement, Justice Barrett's record was 76% conservative. So, the ideological voting by the Justice in that one seat on the Court changed from 4 to 76 percent politically conservative. The following graph, by juxtaposing some of the salient figures of the previous two graphs, makes clear just how dramatic that change was.

(click to enlarge for a better view)

As depicted in this graph, the ideological voting patterns of Justices Gorsuch and Kavanaugh--the other two Trump appointees--remained virtually the same from one year to the next. This is strong evidence that the ideological balance of the cases in the two years had not changed. It was the Ginsburg-Barrett seat that experienced ideological change--and an extraordinary change in the politically conservative direction it was. Again, 4% to 76% conservative.

That change, no doubt, was largely responsible for the 48% to 62% increase in the Court's conservative decision-making. To recap all of the foregoing briefly—and unsurprisingly—Justice Barrett's voting was much more politically conservative than her liberal predecessor, Justice Ginsburg, and, consequently, the Court's record became more conservative.

BUT.... And there's usually a "but."

Take a look at the Justices' voting record and the Court's decisional record three years later—the Court's last completed term, 2023-2024.

(click to enlarge for a better view)

The Court's ideological decision record was virtually identical to that of three years earlier. The same is true for the ideological schism between the three politically liberal and six politically conservative Justices. But Justice Barret's record was less conservative this past term.

In fact, her record was the least conservative of all the conservative Justices. Only 60% politically conservative. Or 40% politically liberal! In the next post, we'll take a look into some of that record.

*[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021):

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues. These are the issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.
"Anyone who follows politics and courts can surely identify a list of such issues. Among the most salient are those dealing with the separation of church and state, gun rights, LGBTQ rights, abortion, affirmative action, immigration, the death penalty, business regulation, and in recent years, just about anything involving [Donald] Trump.]

Supreme Shift: Ginsburg to Barrett (Part 1)

The magnitude of the shift was certainly not matched by a magnitude of serious deliberation.

Olivier Douliery/AFP

Justice Ruth Bader Ginsburg died on September 18th. President Trump nominated Judge Amy Coney Barrett to fill the resulting vacancy a mere eight days later. One and a half weeks later, on October 5th, Senator Lindsey Graham scheduled a four day confirmation hearing. It began the next week.

Democrats decried the hypocrisy of the Republicans who had refused to hold a hearing during an election year when President Obama nominated Judge Merrick Garland. The Democrats also sounded alarms about the likely ramifications of an ideologically conservative Barrett replacing liberal Ginsburg. Republicans, not surprisingly, insisted that there was no such hypocrisy. They also lauded Barrett's avowed judicial restraint in decision-making, while insisting that her asserted embrace of originalism and textualism had nothing to do with any perceived ideological bent. After four days, the pre-ordained result seemed nothing but pre-ordained.

Whatever the partisan wrangling and dissembling may otherwise suggest--about the Barrett nomination and Barrett herself--there are some simple realities. Ruth Bader Ginsburg was selected by Democratic President Bill Clinton. She was heralded for her successful litigation on behalf of equal rights for women, and her record on the Court over 27 years was unmistakably liberal across the wide swath of issues from abortion rights to affirmative action to gender equality to immigration to LGBTQ rights to racial justice to the rights of the accused, etc.

By contrast, Amy Coney Barrett was selected by Republican Donald Trump. Her nomination was urged by supporters because of her ideological leanings that are distinctly contrary to those of Ginsburg, and for her judicial record which, albeit brief, reflects a polar opposite jurisprudence. In short, by all accounts, she is very ideologically conservative.

So let's take a look at the change that's in store--a change for the Court with a Justice Barrett who presumably would behave consistently with her record as Judge Barrett.

Here's what the ideological line-up of the Justices looked like in the immediately past term, with Ginsburg still on the Court:

(click to enlarge)

When considering those issues where there is a clear divide between liberals and conservatives, there is a clear breakdown of the Justices. As depicted above, the liberal or "left" wing of the Court has included Justices Sonya Sotomayor and Ruth Bader Ginsburg, as well as Stephen Breyer and Elena Kagan whose records have been slightly--and just slightly--more ideologically mixed. On the Court's conservative or "right" wing are Justices Clarence Thomas and Samuel Alito, followed closely by Neil Gorsuch and, somewhat less ideologically consistent, Brett Kavanaugh. More ideologically mixed, yet still conservative--especially when contrasted with the Court's liberals--is the Chief Justice, John Roberts.

But what about the terms "liberal" and "conservative"--how exactly are those terms being used? Well, not at all as synonymous with so-called judicial "activism" versus "restraint," loose versus strict interpretation, adherence to precedents and deference to the elected branches versus the opposite. No, none of that. Those dichotomies tell us precious little about judges being ideologically "liberal" or "conservative."

Rather, just think about liberal Democratic politicians and their supporters contrasted with conservative Republican politicians and theirs. Think about those issues where those two camps generally and usually vehemently divide. Think separation of church and state, gun rights, LGBTQ rights, affirmative action, abortion rights and other women's rights, voting rights, immigration, the death penalty, environmental regulations, worker rights versus business, campaign finance, and, of course, Trump. When considering those "hot button" issues and how the Justices vote on them, there are clear patterns. That's what's depicted in the line-up, and that's how we popularly and pretty accurately characterize the Justices.

So it's certainly no surprise that on those issues just listed, as well as other similarly "hot button" matters, Justices Sotomayor and Ginsburg rarely, if ever, voted on the same side as Justices Thomas and Alito. Indeed, all four liberal Justices were almost always on the opposite side of Thomas and Alito. Moreover, it was uncommon for any of the the four liberals to be on the same side as any of the four most conservative Justices. And among the Court's conservatives, only the Chief Justice--at least during the past two terms--sided with the liberals on a somewhat regular, if not usual, basis.

So, the line-up has been 4 liberals and 5 conservatives on the Court--again, with the Chief Justice's voting record being more moderate or centrist than the other conservatives, at least within the Court's ideological spectrum. Let's look at that line-up once more before looking at the change that's in store if Judge Barrett is confirmed. 

(click to enlarge)

Now, let's remove Ginsburg from the depiction and add Barrett:

(click to enlarge)

Based upon the politically conservative groups that urged the nomination of Judge Amy Coney Barrett, the promises President Trump has made about the kind of judges and Justices he would nominate, the support Barrett has been receiving from politically conservative Republican Senators, her academic writings and lectures, her record as a federal appellate judge--based on all of that evidence, there is every reason to believe that a Justice Barrett would be positioned firmly within the politically conservative wing of the Court. That is, there is every reason to believe that she would be voting with the politically conservative Justices on the politically conservative side of the liberal versus conservative, "hot button" issues.

Based on the previously listed evidence, it is safe to assume that her ideological bent is no less conservative than that of Trump's first two nominees, Gorsuch and Kavanaugh. Indeed, she might well be even more ideologically aligned with most conservative among the conservative Justices--i.e., Thomas and Alito.

At the least, her appointment to the Court would alter the previous 5 to 4 politically conservative majority on the Court--or the arguable 4 to 4 ideological balance with Chief Justice Roberts as the "'swing" vote. That would change to a 6 to 3 conservative majority--or arguably a 5-4 conservative majority with Roberts splitting his votes between the Court's two ideological wings. Putting the change more starkly, Judge Barrett's addition to the Court, filling the Ginsburg vacancy, would mean twice as many politically conservative Justices on the Court as liberals. Even more stark? The politically conservative Justices would still constitute a majority without Roberts' vote. The liberals on the Court would need two of the politically conservative Justices to vote their way to ever reach a majority.

To be sure, it is within the realm of possibility that Judge Barrett might experience an ideological and jurisprudential conversion over her tenure on the Court. It has certainly happened to others. Republican appointees have sometimes transitioned to staunch jurisprudential liberals. Nixon appointee Harry Blackmun, Ford appointee John Paul Stevens, and Bush (41) appointee David Souter come readily to mind. And Reagan appointees Sandra Day O'Connor and Anthony Kennedy, even if never quite liberals, both became "swing votes" during their tenures, joining their liberal colleagues on some major social issues.

Absent such a dramatic ideological transformation, however, Judge Barrett's addition to the Court will result in a dramatic ideological transformation of the Court itself. Amy Coney Barrett replacing Ruth Bader Ginsburg? That is dramatic. 

One more note before concluding. Imagine for a moment that remote chance that the Barrett nomination were to fail. What would the Court look like if a President Biden, rather than President Trump, were to fill the Ginsburg vacancy? Take a look:

(click to enlarge)

A Biden appointee to fill the Ginsburg vacancy would not change the ideological line-up of the Court from what it has been. Presumably, Biden would nominate a political liberal, someone in the mold of a Ginsburg or Sotomayor--or Breyer or Kagan. His nominee would certainly not be in the politically conservative mold of a Thomas or Alito or Gorsuch or Kavanaugh--or even Roberts. But such a nominee, if successfully appointed and then aligned with the other liberal Justices, would merely keep the Court's ideological line-up as it was before: 5 politically conservative Justices to 4 liberals, or 4 to 4 with the Chief Justice as the swing vote.

In short, with Trump's pick--a dramatic ideological shift to the right. With a Biden pick--status quo ante; no liberal tilt.

In the next post, we'll consider Barrett's record as a federal appellate judge on the 7th Circuit.

Supreme Blockbusters Coming (Part 4--Confederate Flag [now decided])

The Court released its decision in the Confederate flag case Thursday morning while I was working on this post.
Of course, I would have correctly predicted the ruling.
Not really.

Seems that I was giving the Justices more credit for neutral decisionmaking than they deserve--and I don't think they deserve much to begin with.
Bottom line: the 4 liberal Justices voted against the Confederate flag; 4 of the 5 conservatives voted for it; Justice Thomas (the Court's sole African-American) voted with the liberals on this one.

Let's get to the case itself and the specific legal ruling:

Texas allows specialty (so-called "vanity") license plates as selected and even designed by motorists.
The Sons of Confederate Veterans (Confederate Sons), an organization honoring soldiers who fought for the South, wanted a specialty license plate with a design depicting the Confederate flag and identifying the organization.
Texas, through a board of its motor vehicles department, rejected the request.
The basis for the rejection was the board's standard that "it might be offensive to any member of the public."
The Confederate Sons claimed that the rejection was a violation of free speech.

The federal appeals court (i.e., the 5th Circuit) agreed with the Confederate Sons.
But the U.S. Supreme Court reversed and, instead, sided with Texas.
It did so by a 5-4 vote. (Walker v. Sons of Confederate Veterans, decided 6/18/2015.)

As already noted, all 4 liberal Democratic Justices (Ginsbug, Breyer, Sotomayor, and Kagan) supported the state's rejection of the Confederate flag design.Their 5th vote, making them the majority, came from the Court's only African-American, Justice Thomas. In the past, he has understandably made clear his strong hostility to symbols associated with racism.
The other 4 conservative Republican Justices all supported the Confederate Sons' claimed free speech right.

Hmmm.
Liberals all against the Confederate Sons; conservatives (except Thomas) for them.
Just another one of those coincidences.
Another one of many similar ones with this Court.

My own expectation was that the decision would be the opposite. And that the vote would be 6-3 or 7-2 in favor of free expression rights for the Confederate Sons. Or stated differently, against the state's right to engage in viewpoint discrimination.

I underestimated the ideological tug this case would exert on the Justices.
Not the tug for or against free expression rights.
But sympathy versus hostility for the Confederate flag and, maybe, for the Confederate Sons who wanted to display it.
Or perhaps it is entirely coincidental that the 4 liberal Justices weighed all the legal considerations--pro and con free speech--and just happened to reach a decision against the display of a Confederate flag design.
And entirely coincidental that 4 conservative Justices--only Thomas missing--would weigh the very same free speech considerations and just happen to reach a pro-Confederate flag decision.

Let's be real. What are the odds that these results are purely coincidental? That views and feelings about the Confederate flag, or about those who wanted to display it, played no part in the votes?

Now what about the actual legal/constitutional issue in this case, and the competing legal/constitutional arguments?

The question the case formally presented to the Court was whether the personally selected expressions on the specialty or "vanity" license plates are "government speech" (i.e., Texas speaking), or that of the motorists who selected or designed the special expressions for their plates.

If the specialty expressions are those of the state, then the state can pick and choose what it would like to say. A state could freely choose not to display a Confederate flag on its license plates--just as the Texas motor vehicles department chose not to do.
But if the specialty expressions are those of the motorists who selected or designed them, then their free speech rights are triggered. The motorists would be free to express their viewpoints--unless they involved obscenity, violence-incitement, or other unprotected speech.

So, are the personally selected expressions on the Texas specialty or "vanity" plates Texas speaking or the motorist speaking? That was the legal issue on which the Justices split.

The precedents, as one might expect, can support either position:
Pleasant Grove City v. Summun (2009)--the city, which accepted privately donated monuments for its park, had the right to reject a monument to the "Seven Aphorisms of the Summun Church." Held to be "government speech," 9-0 decision.
Rust v. Sullivan (1991)--the federal government, which provides medicaid for indigent health services, has the right to prohibit health care professionals providing such subsidized care from advising about abortion services. Held to be "government speech," 5-4.
Rosenberger v. University of Virginia (1995)--the state university, which funds student activities, could not refuse to fund an Evangelical Christian student group's religious magazine. Held to involve the student group's protected free speech, 5-4.
Wooley v. Maynard (1977)--the state, New Hampshire, could not stop Jehovah Witnesses from covering the state motto, "Live Free or Die," on the license plates on their cars. Held to involve the objectors' protected free speech, 6-3.

As noted in the dissenting opinion authored by Justice Alito, Texas had already allowed over 350 different logos and designs on specialty or "vanity" plates. They ranged from the names and logos of schools, colleges, universities, and countless organizations and sports teams (including out-of-state competitors of Texas teams), to favorite recreational activities, soft drinks, and foods.

Alito posed the question: Would anyone "really think that the sentiments reflected on these specialty or "vanity" plates are the views of the State of Texas and not those of the owners of the cars?"
I'm with Alito on this question at least, and I would have voted with him and Roberts, Scalia, and Kennedy on that particular point.
It seems a wholly unrealistic stretch to label the logos and designs, which are personally selected, by private motorists', and appear on the license plates on their own cars, to be the state speaking--"government speech."

Consider this.
There is currently another case in which North Carolina has allowed "Choose Life" on the specialty or "vanity" plates. But the state will not allow "Respect Choice." In short, it has allowed its motorists to display an anti-abortion viewpoint, but not a pro-choice one.
The federal appeals court (i.e., the 4th Circuit) unanimously disagreed with the state. It disagreed that this was a case involving "government speech." Instead, the court ruled that the state had violated the motorists' free speech rights by engaging in "blatant viewpoint discrimination." (ACLU v. Tata [2014].)

So how would the liberal Justices of the Supreme Court view the state's refusal to permit motorists to express pro-choice sentiments? Especially while the state allowed other motorists to express pro-life ones? Would the liberal Justices simply view the state's political viewpoint discrimination as valid "government speech," or would they recognize it as unconstitutionally favoring some free speech over others?

But, as they say, that's not the end of the story.

Finally, few people deplore the displaying of the Confederate flag more than I do. To me, as to others, it is a symbol of the fight to maintain slavery and of the later opposition to civil rights.
[Yeah, okay, it reflects "states rights"--to retain slavery and to continue racial segregation and discrimination.] And to me, and others, it persists as an expression of subtle and not-so-subtle racism and white supremacy, nostalgia for the pre-Civil War way of life in the South, and hatred for the "Northern aggression"that ended it--uhhhh, the "Northern aggression" that ended slavery and later imposed racial integration.

Bob Jones University v. U.S. (1983) is a case I believe is relevant and helpful here. In that case, the Supreme Court rejected the church-related university's claim for tax deductions. The Court did so because the university promoted and practiced beliefs of racial discrimination. Although such deductions were generally available to educational institutions, the Court ruled that the nation's fundamental policy against racial discrimination outweighed whatever religious liberty interests of the university were at stake.
[BTW, the Court's opinion was authored by conservative Nixon appointee, Chief Justice Warren Burger; the sole dissenter was William Rehnquist, who Reagan later appointed to succeed Burger as Chief.]

As in the Bob Jones case, it would seem that the Court in the Confederate flag case could have once again recognized a fundamental policy interest in eradicating vestiges of racial discrimination, segregation, and slavery--of hateful symbols that undermine the quest for greater racial harmony.
Instead of engaging in the fiction--absurd to me, as it was to Alito &co. in the dissent--that the personally selected and designed expressions on specialty or "vanity" license plates are the state speaking (the so-called "government speech"), why not simply recognize them for what they are? They are private expressions.

But they are private expressions on a government-sponsored forum--i.e., on the government-offered and sponsored specialty or "vanity" plates.

Free speech is not absolute, and the government need not sponsor speech--i.e., it need not produce and offer license plates--that celebrate or promote what is antithetical to fundamental policy values.
Government certainly need not offer or sponsor a forum for expression that promotes or celebrates hatred, violence, or other anti-social attitudes or conduct.
Individuals certainly have the right of free speech to express homophobia, xenophobia, misogyny, racism, and the like. But they have no right to have the government sponsor such expression on a government created and offered forum.

The dissent in Walker seems to have been right in concluding that the personally selected expressions on specialty or "vanity" plates is private expression, and not "government speech."
Nevertheless, it still seems that the the state's rejection of the Confederate flag design was valid.
But not because the personally selected expressions on these license plates are "government speech."
Rather, because the government need not sponsor expressions that promote or celebrate beliefs that are inimical to our fundamental national policies against racial discrimination, racial segregation, and slavery.
And again, let's be frank, the Confederate flag is tied to all of those.
Government surely need not assist in the display of a symbol that reflects all of those hateful institutions.

Instead of adopting the "this is 'government speech'"fiction--and not a very convincing one--the majority in the Confederate flag case should have acknowledged that the free speech rights of private expression were at issue. But that they were outweighed by the state's, and society's, fundamental policy interests.

Consider the implications for the North Carolina case previously mentioned--i.e., the state allowing "Choose Life" but disallowing "Respect Choice" on license plates.
Applying the "government speech" analysis of the Confederate flag case would result in upholding North Carolina's viewpoint discrimination against pro-choice expression.
On the other hand, recognizing that specialty or "vanity" plates entail private expression would result in prohibiting the state from abridging the free speech rights of pro-choice advocates.
To succeed, the state would need to demonstrate that there is some overriding fundamental policy against a woman's right to choose.
Of course the state could not do that, because the right to choose is a protected constitutional freedom.

One last thing.
The legal reasons a court adopts for reaching its decisions matter.
Often those reasons matter much more than the result in the particular case.
Those legal reasons are applied in all the cases that follow.
The Supreme Court majority's reasons in the Confederate flag case--i.e., "government speech"--will now be applied in many cases coming before federal and state courts and agencies around the country.
That is most unfortunate. Many of those results, like the reasons given in the Confederate flag case, will be wrong.
And lots of free speech--under the guise that it is "government speech"--will suffer.

Supreme Blockbusters Coming (Part 3--Lethal Injection)

Seven years ago, the Justices upheld lethal injection as a constitutional means of execution. A few weeks ago, they heard arguments in another lethal injection case. This one was precipitated by a number of botched procedures that resulted in extremely painful deaths.

Lethal-Injection Procedures (Glossip v. Gross)
In its 2008 decision in Baze v. Rees, the Supreme Court rejected a challenge to death sentences carried out by injection with lethal drugs. The challenge was based upon the possibility that the procedures could cause serious pain if they were not properly followed.

By a vote of 7-2, the Justices held that such a possibility did not render execution by lethal injection unconstitutional. A mere possibility did not mean that such executions were "cruel and unusual" within the meaning of the 8th Amendment (or the 14th Amendment, as applied to the states). That decision is the "governing" precedent for this latest case.

But it's not so clear what that "governing" precedent actually established that's precedential. The lopsided vote in Baze is misleading. Despite being 7-2, it did not produce a majority rule or rationale. There were 7 separate opinions written, and collectively they asserted at least 3 different ways to analyze these death penalty cases.

The leading opinion, authored by Chief Justice Roberts, was joined only by Justices Kennedy and Alito. In that plurality opinion, Roberts surveyed past "cruel and unusual" decisions and concluded that a method of execution is unconstitutional if it entails an "intolerable risk" of "severe pain." Applying that test, he determined that the lethal injection procedure in that case was acceptable.

In an opinion by Justice Thomas, he and Justice Scalia made clear their view that only the most torturous, barbaric, and gratuitously excruciating punishments were "cruel and unusual." So only executions by burning alive, disemboweling, crucifixion, drawing and quartering, and the like would violate the constitution. Lethal injection was clearly acceptable to these two Justices.

In dissent, Justice Ginsburg, joined by Justice Souter, argued that the test for "cruel and unusual" was whether the procedure created an "avoidable risk"of "unnecessary pain." They refused to approve lethal injection unless or until it was shown that the risk could not be avoided.
(Justices Stevens and Breyer each wrote a separate opinion. Stevens kind of agreed with Roberts. Breyer agreed with Ginsburg's test, but believed that lethal injection passed.)

So that's where the law, such as it is, stands.

Now in the current case, the question is about the use by Oklahoma (and some other states) of a particular 1st drug in a 3 drug protocol. The 2nd and 3rd drugs in the sequence stop the person's breathing and stop his heart. But it's the 1st drug administered that is supposed to anesthetize the person so that he is unconscious and feels no pain.

Because of a shortage of the commonly used 1st drug (in large measure because of the efforts of death penalty opponents), states like Oklahoma began to use an alternative. That drug is actually a sedative, not an anesthetic. In large enough doses, however, the so-called midazolam is supposed to be effective in inducing an unconscious state.

Nevertheless, in several executions, in a few different states, in which midazolam was used, the person was not rendered unconscious and, instead, suffered a gruesome and extremely painful death. Is that enough for the Court to rule that lethal injection with midazolam is unconstitutional?

Putting that question another way: is the apparent unreliability of the sedative midazolam--to induce unconsciousness and, thereby, to prevent an intensely painful execution--enough to persuade at least 5 Justices that lethal injection with that drug violates the constitutional prohibition against "cruel and unusual" punishment?

Let's consider the Justices and their possible votes.

First, there are the easiest ones. Scalia and Thomas, as we've already noted, believe that only punishments similar to disembowelment, burning alive, crucifixion, and drawing and quartering are prohibited by the Constitution. There's very little chance they will consider the unreliable or botched lethal injections sufficiently gruesome.

On the other hand, there are the liberals--Ginsburg, Breyer, Sotomayor, and Kagan. Some of them are openly hostile to the death penalty. All of them seemed extremely skeptical at oral argument, if not utterly contemptuous of Oklahoma's defense of its lethal injection protocol. It's very likely that all 4 of these Justices will vote that what Oklahoma is doing is unconstitutional.

That leaves Roberts, Kennedy, and Alito. They joined together to form the plurality in the 2008 Baze case. It was they who stated that the test for "cruel and unusual" is whether there is an "intolerable risk" of "severe pain."

So is the risk with midazolam "intolerable?" Less subjective and amorphous than that, how great is the actual risk ? And how great must that risk be for Roberts or Kennedy or Alito to conclude that lethal injection with midazolam flunks their constitutional test?

At oral argument, Alito seemed quite unsympathetic to the claims against Oklahoma's use of that alternate drug. He seemed to blame the death penalty opponents for making the more reliable drugs so scarce. But would he really think that's a legitimate reason to uphold the use of the risky drug? Of a drug that risks seriously painful executions? It would be no surprise if he voted to approve Oklahoma's protocol.

As for Roberts and Kennedy, they expressed similar concerns to Alito's. But--at least from several reports of the oral arguments--neither seemed to be as openly hostile to death penalty opponents generally, or to be directing that hostility toward the opponents of the midazolam protocol as much as Alito.

Moreover, Kennedy has not been a staunch supporter of the death penalty. Indeed, he has occasionally joined the liberals to invalidate it in certain circumstances. The unreliability of using midazolam as an anesthetic might just nudge Kennedy over to the liberals in this case.

Roberts has also shown some ambivalence about the death penalty in the past. Not as much as Kennedy. But he is certainly nowhere near the camp of Scalia and Thomas.

So the bottom line on this one?
As with the same-sex marriage and Obamacare subsidies cases, the 4 liberals are virtually certain to vote on the same side and, in this case, to vote against Oklahoma's lethal injection protocol. And as in those other cases, they need just one more vote for a majority.
One thing's for sure: they will not get Scalia or Thomas.
And they will very likely not get Alito.
That's 4-3.

The most likely 5th vote for the liberals, if they're going to get one, is--no surprise here--Kennedy. He seemed to acknowledge at oral argument that the use of midazolam created much more risk than other drugs. Whether he will hold the shortage of more reliable anesthetics against the opponents of midazolam is, of course, anyone's guess. But Kennedy has never seemed as petty and belligerent as some others on the Court.

Roberts wouldn't be a shock if he applied his Baze standard and found midazolam to be too risky. Again, he is certainly no Scalia or Thomas. But, if I were the liberal Justices, I wouldn't count on him.

So the vote on this one, as on the cases we previously discussed, will likely be deeply split.
If I had to bet, I'd say 5-4--but I have no confidence whatsoever which way that will be.
(Ok, if I'm ordered from on high to say? Kennedy goes with the Libs.)


In the next post: the confederate flag on a license plate?

(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.

(Part 8--Ginsburg's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

This past week, in Schuette v. Coalition to Defend Affirmative Action, the Court upheld Michigan's recently adopted ban on affirmative action--i.e. race conscious decisions--in state university admissions. The vote was 6-2. (Justice Kagan did not participate.) Not surprisingly, all 5 Republican Justices supported the ban . Not a single one of them thought there was a problem with the voters of a state outlawing admissions programs that had sought, for compelling reasons (the only ones constitutionally allowed), to increase the college enrollment of racial minorities. Not one. Straight party line.

Among the Democratic Justices, Breyer wrote separately to agree with the Republicans, but on narrower grounds specific to this particular case. Justice Sotomayor dissented in a lengthy opinion joined by Justice Ginsburg.

For now, let's continue with our look at voting records compiled even before the Schuette decision.

Justice Ruth Bader Ginsburg's voting record in cases involving issues of racial discrimination?

A victim of gender discrimination early in her career. The nation's foremost litigant to eliminate gender discrimination. Appointed to the Court by Democratic President Bill Clinton. A predictably liberal vote on ideologically charged issued--e.g., civil rights, rights of the accused, campaign finance, etc.

So what about Ginsburg's voting on racial discrimination issues? Even before examining her record, what would be expected? Anything like Scalia's or Thomas's records? Or the polar opposite?

Of course it's just what would be expected. (I.e., the polar opposite of Scalia's and Thomas's record, for those who might not follow the Court.) And perhaps even more so.

Let's see.

(click graphs to enlarge)

GRAPH 1

As depicted in graph 1, Justice Ginsburg voted to uphold complaints brought by Whites much less frequently than did the Republican Justices we've looked at previously in this series--i.e., Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas. She supported White claimants in 2 out of 7 cases, or 29% of the time. That compared to 7 out of 7 cases, or 100% of the time, for each of the Republican Justices.

As for the complaints brought by Racial Minorities, she voted to uphold them much more frequently than did the Republican Justices. Her record: 9 out of 11 cases, or 82% of the time she supported the Racial Minority claimants. That compared to 2 out of 11 cases (18%) for Scalia and Thomas, 4 out of 11 for Roberts (36%), and 5 out of 11 (45%) for Kennedy.

But let's now focus on those closer, divided cases. What was Ginsburg's record in those cases where the arguments on both sides were strong, and a Justice would certainly have good reason to vote either way? Here it is. 

GRAPH 2

 Ah, in those closer cases, Ginsburg voted against the complaint every time it was brought by Whites. She voted to uphold the complaint every time it was brought by Racial Minorities. Exactly the opposite of Scalia and Thomas.

Thomas, Ginsburg, Breyer & Alito - Smith & Pigott (Part 4 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

For this post, we're focusing on the judicial output of the next most senior Justices and New York Judges. Specifically, the next 4 senior Justices and next 2 senior Judges. (Because the Supreme Court has 9 members compared to the Court of Appeals' 7, we're looking at 2 additional Supreme Court Justices in this post.)

CHART 1

(click to enlarge)

As is clear from Chart 1, each of the 2 New York Court of Appeals Judges authored far more majority opinions--i.e., opinions written for their Court that decided the case--than did any of the Supreme Court Justices. This is the same kind of sharp contrast that we saw with the other Judges and Justices whose judicial outputs we compared in the previous posts in this series.

In those first 3 posts, we looked at last year's opinion output of the 3 most senior members of each court. That is, Chief Justice Roberts and Justices Scalia and Kennedy of the nation's high court; Chief Judge Lippman and Judges Graffeo and Read of New York's. (See Part 3.)

Thus far, the pattern emerging is that the New York Judges collectively wrote significantly more judicial opinions than did the Justices. This is most dramatically true regarding majority opinions. It is also generally true regarding total opinions--i.e., the sum of majorities, separate concurrences, and dissents.

The only exception seen thus far is the total number of opinions authored by Scalia. He wrote more in toto than did New York's Judge Read. Scalia actually wrote only 1/2 as many majority opinions as Read--and even less than that compared to Lippman and Graffeo. But he wrote considerably more concurrences and dissents than did Read. That raised his total somewhat above hers. Other than that, the pattern was uniform.

In this post, we're looking at the judicial output of Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito--the next 4 most senior Justices. And from the New York court, Robert Smith and Eugene Pigott--the next 2 most senior Judges.

What about their total opinions?

CHART 2

Again, the number of total opinions represents the sum of majority + concurring + dissenting opinions. (And as we've specified previously in this series, we're looking at the immediately preceding year at the Supreme Court and the New York Court of Appeals, from summer break 2012 to summer break 2013.)

(Part 5--Retirees, past & possible) Court Elders: The Septuagenarian Justices

In this series, we've been looking at the septuagenarian Justices, the younger ones, and the recent retirees. With regard to the retirees--the 10 over the last 25 years--we've focused on their time on the Court and their age when they departed. [See [See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012; (Part 3--the "Yoots"), Dec. 4, 2012; (Part 4--the Retirees), Dec. 6, 2012.]

Now, let's single out the "extreme" retirees--i.e., those were on the Court the longest and the shortest, and those who were the oldest and the youngest at retirement  Then the "average" retirees--i.e., those who represent the average (or the median) time Justices remain on the Court, and who represent the average (or the median) age when they leave.

Here are the extremes:

(click to enlarge)

That's Justice John Paul Stevens, appointed by President Ford and the Court's last retiree, at one end of the range with the longest tenure among the recent retirees. His 34 1/2 years is one of the longest in Court history. (William O. Douglas, an FDR appointee, holds the record at 36 1/2 years.)

Justice Lewis Powell, the 3rd of President Nixon's 4 appointees, is at the other end with his 15 1/2 years being the briefest tenure among the last 10 retirees. (James F. Byrnes, the last of FDR's 9 appointees, holds the record with a mere 15 months.)

As for age at retirement, that's Stevens again at one end as the oldest--and, at 90, one of the oldest retirees in Court history. (Oliver Wendell Holmes, a TR appointee, was several months older--just a few weeks short of his 91st birthday.)

At the other end is President Bush 41's appointee, Justice David Souter, whose retirement at (nearly) 69 years of age makes him the youngest to retire among recent Justices. (Justice Benjamin Curtis, appointed by President Fillmore, was apparently the youngest to leave the Court. He resigned at the age of 47, appalled by the Court's decision in the Dred Scott decision, against which he authored a dissenting opinion.)

[I've summarized the time-on-the-Court and retirement age data for the last 10 retirees in a Table that's accessible HERE.]

(Part 3--the "Yoots") Court Elders: The Septuagenarian Justices

In parts 1 and 2 of this series, we took a quick look at the 4 septuagenarians currently on the Court--Justices Ginsburg, Scalia, Kennedy, and Breyer. Specifically, we pointed to their ages-- now and when President Obama's 2nd term ends--their ideological leanings, and the likelihood of their retiring in the next 4 years.
[See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012.]

Here's a recap:

(click to enlarge)

In short, their ages range from the oldest, 79 ( Ginsburg), to the youngest, 74 (Breyer); and by the end of Obama's term, 83 to 78. Their years on the Court, by that time, will range from 30 (Scalia) to 22 (Breyer).

As for the remaining 5 Justices, they are all at least 10 years younger than the youngest septuagenarian. Just how young are these relative young-ens (or "yoots," per Joe Pesci's Vinny Gambini in My Cousin Vinny)?

(Part 2) Court Elders: The Septuagenarian Justices

[Hope everyone had a wonderful Thanksgiving.

Have to mention that I had my 1st Flagel (= flat bagel) at my brother and sister-in-law's. LOVED it!. It's not quite eggplant parm or turkey, but it's awfully good!]

In the last post, we took a look at recent retirees. Three of them. Justices O'Connor, Souter, and Stevens. We then identified the 4 septuagenarians currently on the Court. We looked at 2 of them: Justices Ginsburg and Scalia.

We considered their ages-- now and at the end of re-elected President Obama's next term--the ideological leanings evident from their voting records, and some indications of their readiness or not to retire in the next 4 years. [See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012.]

Let's now continue with the other 2 Justices who are in their 70's: Kennedy and Breyer.

Anthony Kennedy Conservative, but liberal on some issues.

(click to enlarge)

Justice Kennedy would not seem to be a good bet for retiring too soon.

As all Court watchers are well aware, Justice Kennedy is a generally conservative Justice. But he's not nearly as one-sidedly so as Scalia or Thomas. And being less-rigidly ideological, he is the frequent swing-vote on the Court. In other words, his vote often decides the cases.

Now that surely makes him one of the most powerful people in American government today. He is, perhaps, second only to the President himself. Certainly that is true on constitutional and other legal matters. Likewise on political matters that raise constitutional and other legal issues.

As such, in the most consequential cases before the Court, it is his vote that is most often the most solicited. Both by litigants and by the other Justices.

Court Elders: The Septuagenarian Justices (Part 1)

[Back from surgery. All went well, thank you.

And thanks to all the wonderful folks at Albany Med.]

With the re-election of President Obama [Disclosure: I'm unabashedly elated.], thoughts turn to the Supreme Court.

For Court watchers, as well as just about anyone else who follows politics and government, the question of possible Justice retirements and replacements comes to the fore. Four of the Justices are in their 70's. Three will be 80 or older 4 years from now, at the end of the Obama presidency.

(click to enlarge)

Those septuagenarians are Justices Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer.

Now let's get one thing straight. This is not a death watch. (Others have engaged in that--explicitly.) Nor is this an illness watch. No. My fervent wish is that all the members of the Court would live long and healthy for double their current ages and beyond. So, No.

But this is about the reality and history of retirements. Leaving the Court for a host of different reasons. And at different ages.

Part 5: Focus on Justice Breyer. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Let's turn to Justice Stephen Breyer.

President Clinton's 2d appointee--the 1st being Justice Ginsburg.
And the next longest serving member of the Court--following Scalia, Kennedy, Thomas, and Ginsburg, all of whom have been the subject of one of the previous posts in this series on New York Court Watcher.
[See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012; Part 3: Focus on Justice Thomas, May 6, 2012; Part 4: Focus on Justice Ginsburg, May 10, 2010.]

Let's look at his record the same way we've looked at theirs. So what is it?

What about his voting in those highly partisan-charged cases? You know, the ones involving guns, gays, immigrants, campaign finance, and other issues with deep partisan divides. Take a look.

(click to enlarge)

GRAPH 1

Hmm. Just as one-sided as Ginsburg's, Scalia's, and Thomas's. Identical to Ginsburg's record. 100% partisan liberal Democratic.

That is, Breyer voted in every one of these very highly charged cases just the way Ginsburg did. He voted exactly the way we would expect a very partisan liberal Democratic politician to vote.

Part 4: Focus on Justice Ginsburg. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

And now for Justice Ruth Bader Ginsburg.
The same questions.
Her record: how partisan? ideological? activist?

As with Justices Scalia and Thomas in previous posts in this series, the questions are not about whether, or how much, you--or I--might happen to like the results Ginsburg supported with her votes. [This is mostly directed to my dear liberal friends.] The questions are not about whether you--or I--might prefer the liberal positions she usually takes to the conservative ones that Scalia and Thomas usually do.

No.
Instead, the questions, as they were with Scalia and Thomas (and don't forget Kennedy), are:
How closely does Ginsburg's voting record mirror that which we would expect from partisan politicians--whether conservative Republican politicians or liberal Democratic ones--on those most highly partisan-charged issues?
How politically conservative or liberal is her voting record across the broad swath of ideologically-laden issues?
How judicially activist or restrained is her record?

Well, [And again, this is mostly directed to my dear liberal friends.] brace yourselves.

How partisan her record?
Take a look.

(click to enlarge)

GRAPH 1

100% partisan, that how much!

Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3)

[The best moment of Tuesday night's presidential address? Justice Ginsburg entering the room to rousing applause and President Obama embracing her. If you weren't moved, you have no soul.

If your eyes were dry, you're not human.

My Mom, who has plenty of soul and is very human, couldn't say enough. According to her, Ginsburg "should get the Congressional Medal of Honor. You write that on your blog. You tell them your mother is 84 ['Nonna' is also the mother of 6, grandmother of 17, and great grandmother of 2.] and that she said it took a lot of courage for that woman to show up like that. She's giving hope to all those people suffering from that dreadful disease. I probably don't agree with her on many things [My Mom's a stalwart Republican.] but that doesn't matter. That poor thing. She's so brave. You tell them she deserves the Medal of Honor." Right again, Mom. And I just did.

It's become ever more clear why President Clinton fell in love with Ginsburg when he met her and decided she was his pick for the Court.]

In the previous two posts on the New York Court Watcher, we looked at how Justice Ginsburg's voting record compared to that of her colleagues on the Court's ideological spectrum. We then looked at how frequently her voting placed her within the Court's majority and in dissent, and, again, how her record compared to that of her collegues. (See Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 2), Feb. 25, 2009; and (Part I), Feb. 22, 2009.)

In this post we'll look at Ginsburg's voting alignments. Who she votes with in the controversial, tough, hot-button cases. How frequently, or infrequently, she's on the same side with each of the other Justices in deciding those issues. We'll also identify those "defining decisions" in which she broke ranks with her usual allies on the Court--her ideological kin--or voted on the ideologically or jurisprudentially opposite side of an issue from what is more typical for her (i.e., where she voted for the more conservative side of the issue). To start off, here's a nice little graph that, like graphs often do, shows an awful lot and makes it awfully plain.

GRAPH 1: Justice Ginsburg
Voting Alignments (%)
(click to enlarge)

Obviously, if not strikingly, from the graph, Ginsburg has been agreeing with Justice David Souter very often, and with Justices Antonin Scalia and Clarence Thomas very rarely. If the graph is reorganized in order of alignment with Ginsburg, from most to least (yes, descending order), the picture is even clearer--especially with regard to her other colleagues.

GRAPH 2: Justice Ginsburg
Voting Alignments (%) in Descending Order
(click to enlarge)

Not surprisingly, the order of alignment with Ginsburg is identical to the Court's ideological spectrum, from liberal to conservative. (See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008.) She voted with the Justices on the Court's liberal wing (i.e., Stephen Breyer and John Paul Stevens, in addition to Souter) much more frequently than she did with those on the conservative wing (i.e., John Roberts and Samuel Alito, in addition to Scalia and Thomas). Moreover, the difference is substantial. She vote with Souter 10 times more often than with Thomas and 5 times than with Scalia. She also voted with the Breyer and Stevens twice as frequently as she did with the somewhat moderate conservative Roberts and Alito. There is simply no doubt who are Ginsburgs allies on the Court, and who are her adversaries. And then there's swing-vote Justice Anthony Kennedy who--surprise, surprise--is a mix of ally and adversary.

As for adversaries, lets add the non-alignment or disagreement data to the graph. Of course, these are just the flip-side of the alignment or agreement data. But it all seems to become even more vivid when both sides are depicted. So here it goes, and this time with the actual number of "defining decisions" instead of a percentage. It helps to see exactly what we're talking about. And, again of course, the depiction of relative alignment/non-alignment is undisturbed.

GRAPH 3: Justice Ginsburg
Voting Alignments/Non-Alignments (#)
(click to enlarge)

It's just been said, but in a different way: look at Ginsburg's non-alignment/disagreement with Scalia and Thomas. And look at how great it is as compared to her non-alignment/disagreement with Souter, Breyer and Stevens. No missing that. But let's reorganize to put it all in order again--descending order of alignment/agreement, ascending order of non-alignment/disagreement.

GRAPH 4: Justice Ginsburg
Voting Alignments/Non-Alignments (#) in Order
(click to enlarge)

Take a look at the climb of disagreement from Souter, through the other liberals and the somewhat moderate conservatives, to Scalia and Thomas. The climb is pretty steep. It represents the sharp differences in the Justices' overall agreement with Ginsburg. The sharp increase in the extent of their respective disagreements with her. The stark contrast in their comparative ideological conflict with her. From barely no such conflict with Souter, to more than 5 times that with Kennedy, and more than 12 times with Scalia and Thomas.

Out of the 15 "defining decisions," Ginsburg disagreed with Souter in only 1. And even then it was only a partial disagreement. She was on opposite sides from Kennedy in 5 of the 15. From Scalia, in12 of them. From Thomas, in 13. It can't get much more stark than that.

Finally, when did Ginsburg break ranks? When did she take a more conservative position than her ideological allies? When did she take a position at odds with the more liberal side of an issue before the Court? Not surprisingly, she didn't do so very often. Indeed, it was quite rare.

Of the 15 'defining decisions," there were only 2 in which Ginsburg did not vote for the more liberal side of an issue before the Court. And in only 1 of those did she not vote for a more liberal position than other Justices. She never voted for a more conservative resolution of an issue than that taken by any of her colleagues in any of these cases. The closest she came was joining a unanimous decision for a conservative result.

That was in the Lopez-Torres case. Ginsburg joined all of her colleagues in a decision upholding New York State's nomination system for "supreme court" (i.e., trial court) judges. Ginsburg might have been expected to take sides with those who challenged the system on First Amendment grounds. She didn't. But neither did any of the other Justices.

In the other case, Ginsburg actually did take a position more liberal--or at least not as conservative--as her colleagues. In Moore, the Court was unanimous in holding that a state police search that violated that state's law was not an "unreasonable" search under the Fourth Amendment. But Ginsburg authored a separate concurring opinion, for herself alone, making plain that the Scalia-written Court's opinion took too broad a position. For her, the case turned on the narrow ground that the state itself would not exclude evidence for a violation of its own law. For her, a state law violation was not so clearly and unqualifiedly disconnected from an "unreasonable" search. So although her vote sided with the prosecution and not the accused, her position was somewhat more liberal--and less conservative--than that of her colleagues.

In any event, Lopez-Torres and Moore were the only 2 cases out of the 15 "defining decisions" in which Ginsburg voted for the conservative resolution of the issue before the Court. And in Moore, as we've just discussed, she took a position less conservative than the rest of the Justices. Stated differently, Ginsburg never took a position in any of the 15 "defining decisions" that was less liberal--or more conservative--than any of her colleagues. Her vote was the most liberal--or one among others that were equally liberal--in every one of those cases.

Well, that concludes this 3 part series on Justice Ginsburg. In previous posts we've looked at Roberts and Stevens, and we began to look at Scalia and Thomas together. (The New York Court Watcher then turned for a while to the nomination and confirmation of New York State's new Chief Judge, and then to Justice Ginsburg when she became ill.) The next several posts on the Supreme Court will finish the examination of Scalia's and Thomas's voting records, and then look at the records of the remaining Justices: Souter, Breyer, Kennedy, and Alito.

Till then, God bless Justice Ginsburg and may she be well. And the same to all of you.