Supreme Court: Voting W/ Whom? & Breaking Ranks When?--Focus on Stevens [Yes, Graphs Included]

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

Ok, right at the start, a nice graph that depicts a lot of what is to follow in prose. So if you're satisfied, no need to read further. But if you decide to continue, you just might find a few interesting tidbits--some of which may not be immediately obvious and some of which are not there at all. So for those of you who want to move on, here goes.

The focus of this post (which should be somewhat apparent by now) is John Paul Stevens, the Justice who's been on the Court the longest and, therefore, is second only to the Chief Justice in the Court's hierarchy. He's the one who swore in the Vice President this past Tuesday and got the oath right. (John Roberts, the Chief Justice, who flubbed the oath when swearing in President Obama [yep, PRESIDENT OBAMA!], was the focus of the first post in this series. See Supreme Court: Voting W/ Whom? & Breaking Ranks When?--Focus on Roberts [Yes, Graphs Included], Jan. 10, 2009.)

Stevens, appointed 33 years ago by Republican President Gerald Ford, almost immediately proved himself more aligned with the Court's liberals than its conservatives. That alignment has continued. Indeed, Stevens is undoubtedly today's veteran leader of the Court's liberal wing--even if not it's most liberal member. (For related discussions, see GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.)

As was done in the post that focused on Roberts, this one will look at the voting alignments and the "breaking ranks" cases for Stevens. So we'll look at the frequency with which Stevens voted with each of his colleagues--i.e., voted on the same side of an issue--in the "defining decisions" of the Court's last term. (Those 15 particularly revealing decisions were identified and discussed in the Nov. 16, 2008 post cited above and in the previous ones cited in that post.) And in addition to the alignment frequencies, we'll look at the cases in which Stevens broke ranks with his typical ideological allies (the liberals or the more liberal side of an issue) and voted instead with his usual ideological opposites (the conservatives or the more conservative side of an issue).

To get started, let's take a second look at the info depicted in the first graph, this time rearranged with Stevens' voting alignments in order from the highest on down. (Yes, again, "descending" order.)

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

As we previously saw with Roberts, what is immediately clear for Stevens is the wide range of alignment frequencies with his colleagues. From a high of 90% alignment with Stephen Breyer to a low of 33% with Clarence Thomas. What is also clear is Stevens' high rate of alignment with several of his colleagues. In addition to Breyer at 90%, there's Anthony Kennedy at 87%, David Souter at 80%, and Ruth Bader Ginsburg at 77%. This is consistent with the high rate at which he was in the majority in these "defining decisions." As shown in Graph #1, that was 87%.

At the other end of the alignment spectrum for Stevens--the far other end--is Thomas, at a mere 33%, as we've already noted. There's Scalia as well, at 40%. With his remaining colleagues, Roberts and Samuel Alito, Stevens' alignments was neither especially high nor low: 67% and 63% respectively.

So recapped somewhat differently, liberal Justice Stevens was aligned most highly with liberal Breyer and moderate-swing vote Kennedy, and almost as highly with the Court's staunchest liberals, Souter and Ginsburg. (See the November 26, 2008 post [link above], and the posts cited in that one, for discussions of where each Justice falls on the Court's ideological voting spectrum.) Stevens was aligned the very least with the Court's staunchest conservatives, Thomas and Scalia. He was aligned moderately with Roberts and Alito, whose records are not nearly as staunchly conservative as Thomas and Scalia.

Interestingly, but not surprisingly, both Stevens and Roberts had very high rates of alignment with Kennedy, the Court's moderate and its swing vote. (See the January 10, 2009 post on Roberts [link above] for a discussion of his alignments.) For both Stevens and Roberts, their alignment with Kennedy was the second highest among all their alignments. Liberal Stevens' highest alignment was with a liberal (but not the most liberal), Breyer. Correspondingly, conservative Roberts' highest alignment was with a conservative (but not the most conservative), Alito. Liberal Stevens' lowest alignment was with the most conservative Justices, Thomas and Scalia. Conservative Roberts' lowest alignment was with the most liberal Justices, Ginsburg and Souter. Hence, both Stevens and Roberts aligned the least with the staunchest of their respective ideological opposites. And they both aligned the most with the more moderate of their respective ideological allies--and with moderate-swing Kennedy.

Now let's take a look at these same voting alignments, but this time stated in actual numbers of cases (out of the total 15 "defining decisions") instead of percentages. And let's also look at the flipside: the non-alignment data. So the number of cases in agreement, and number of cases in disagreement. Graph 3 depicts Stevens' voting alignments and non-alignments in order of Justice seniority.

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

Now, if the Justices are simply rearranged in the order of their alignment or agreement with Stevens, it looks like this:

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

Among the things these last 2 graphs make even more vivd is the extent of disagreement Stevens had with some of his colleagues--as well as the minimal disagreement he had with others. His disagreement with Thomas, for example, was 10 times that with Breyer, and 5 times that with Kennedy. With Scalia, the multiples of disagreement were almost as great. (Yes, you say, but what gives with the 1/2 numbers depicted in the graph? Let me repeat what I wrote in the post on Roberts. See the bracketed italics below.)

[As explained in earlier posts (see, Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 4, 2008), the votes in each case are generally counted as either on one side of the issue decided by the Court or the other. In some cases, however, some votes seem more accurately treated as half and half. So, e.g., in Baze, on the constitutional validity of execution by lethal injection, the plurality opinion by Roberts was midway between the dissent of Ginsburg (joined by Souter), which argued that there were fatal constitutional problems, and the separate concurring opinion of Thomas (joined by Scalia), which saw no possible problem with lethal injection. So Roberts' vote, as well as the votes of those who joined his result and his reasoning (even if in a separate concurring opinion as did Stevens), is treated as in half agreement with the dissenters and half agreement with the separate concurrers. Similarly, in Moore, on the constitutional validity of a search conducted in violation of state law, although Ginsburg voted with the rest of the Court to uphold the conviction in question, her separate concurring opinion made clear that she took a significantly less pro-prosecution position than her colleagues. So her vote is treated as half with and half against the majority--which included both Roberts and Stevens. ]

As for Stevens' "breaking ranks" cases, he voted with the conservatives and against his usual liberal allies in 4 out of the 15 "defining decisions." (He also voted with the conservatives in 2 additional cases. But in those 2, the other liberal Justices--or all except one--voted the same way. So in Lopez Torres, in which the Court upheld New York State's elective system for trial judges, the Court unanimously reversed the more liberal decision of the 2d Circuit Court of Appeals which had found that the system violated First Amendment rights. And in Moore, the Court was virtually unanimous in ruling that its own interpretation of the Fourth Amendment--not the greater protections of a state's own law--determined whether a violation occured. Ginsburg registered some disagreement in a separate concurring opinion, but only with some of the Court's reasoning.)

The 4 cases in which Stevens actually did break ranks with his fellow liberals were Baze (lethal injection), Medellin (authority of the international court's rulings), Williams (child pornography), and Crawford (voter identification).

In Baze and Crawford he was willing to uphold state choices which were legitimate on their face--lethal injection as a humane method of execution and identification requirements to prevent voter fraud. But he was only willing unless and until the complaints against them were shown to be actual, rather than just potential. So, in both cases, he rejected the more liberal positions taken by his usual allies--i.e., that lethal injection and voter identification requirements were invalid period, because the very real possibile problems of each could not be disregarded. But neither did Stevens side with the staunch conservatives in those cases. They argued (in a separate concurring opinion in each case) that there were simply no possible constitutional infirmities with lethal injection or with voter identification requirements. The positions Stevens took, in both Baze and Crawford, were midway between the more conservative and more liberal positions taken.

In Medellin, Stevens again took a position to afford more latitude to a state. He agreed with the conservatives that neither the International Court of Justice nor the President has the authority to require a state to abide by an international treaty. That is, at least not until or unless Congress passes a law requiring state abidance. Stevens disagreed with his fellow liberals, Breyer, Souter and Ginsburg, that international treaties were automatically binding law under the Supremacy Clause of the Constitution.

Finally, in Williams, where he was joined in his concurring opinion by fellow liberal Breyer, Stevens was willing to give Congress the benefit of the doubt--just as he was willing to do with the states in Baze, Crawford, and Medellin. He did so here by presuming that Congress did not intend an unconstitutional law. Accordingly, he interpreted the child pornography statute in question so that it would not infringe upon First Amendment rights and, therefore, would be valid. His position contrasted with the more liberal position of Souter (who was joined in dissent by Ginsburg). Souter's argument was that the law unavoidably targeted protected speech.

The benefit of the doubt and deference. That seems to have separated Stevens from his fellow liberals in his "breaking ranks" cases. Now he didn't turn a blind eye to the constitutional problems raised in those 4 cases. In both Baze and Crawford he acknowledged the possible problems. But he chose not to interfere with the states until the problems became real. In Williams, he acknowledged the constitutional problems. So he interpreted the statute to eliminate them. In Medellin, he acknowledged the place of international law as part of this country's law. But he took the position that Congress was the appropriate branch of government to implement it. So unlike the most conservative Justices, he did see problems. But he took a more wait-and-see approach than did other liberal Justices.

Indeed, a subsequent development in Medellin demonstrates the foregoing. After the Court's decision in Medellin, Texas decided to proceed with the execution in question, without any effort whatsoever to abide by the procedural protections guaranteed by the international treaty and sought to be enforced by the international court. When a new petition came before the Court, Stevens then voted with his fellow liberals--and in opposition to the conservatives in the majority--to stay that execution.

Sooooooo, Stevens record is generally quite liberal. At least within the spectrum of the current Court, it certainly is. He is not quite as liberal as Ginsburg or Souter, or even Breyer. But his voting is much much closer to theirs than it is to the Court's conservatives. And (this just says the same thing a different way) his voting alignment with them is much higher than it is with the conservatives--and much much higher than it is with the most conservative Justices, Thomas and Scalia. Beyond that, even when Stevens has broken ranks and sided with the conservatives in reaching a result in a case, his positions are typically not entirely conservative. They are usually midway between conservative and liberal. He may not be siding with other liberals in those cases. But neither is he siding with the Court's most conservative Justices nor taking the most conservative position advanced. In short, even when he votes conservative, Stevens usually brings a liberal perspective to bear on his position.


Next up in the next post in this series: Scalia. Now that's a whole 'nother story entirely!!

Supreme Court: Voting W/ Whom? & Breaking Ranks When?--Focus on Roberts [Yes, Graphs Included]

[It's been a couple of weeks since we looked at the Supreme Court on New York Court Watcher. This blog (ok, me) has been preoccupied with the "merit" selection process in New York for picking judges for the Court of Appeals, the state's highest court. Specifically for picking a successor to Chief Judge Judith Kaye, who was forced to retire because of New York's asinine law mandating the retirement of Court of Appeals judges at age 70. In fact, the selection of Kaye's successor has almost consumed this blog's attention since the beginning of December. There were a few postings about the Supremes in December, but the Chief Judge selection process--with the attendant political brouhaha--has been the focus of most posts the past 2 months. The new Chief has not yet been selected. That will happen on or before January 15. In any event, there's certainly lots to discuss about the Supreme Court Justices. So let's get back to them.]

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

Thought we'd get started with a graph. Seems like a good eye-catching way to begin the topic at hand.

This graph depicts the frequency with which Chief Justice John Roberts voted with each of his colleagues (on the same side, that is) in the "defining decisions" of the last term--the Court's 2007-2008 term. Recall that these "defining decisions" are 15 particularly revealing ones which were identified previously. (See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.) These decisions dealt with "hot button" matters that typically divide the Justices--just like they divide the rest of us--along political, philosophical, and cultural lines--i.e., discrimination, cultural issues, law and order, and political process. Graph #1 shows the percentage of those "defining decisions" in which Roberts was aligned with each of the other Justices.

The last series of posts about the Supreme Court on the New York Court Watcher looked at the frequency with which each Justice voted in the majority in those "defining decisions" last term. Also examined were the Justices' dissents. The particular purpose in that was to identify the kinds of decisions about which each Justice disagreed sufficiently to break with the Court and write or join a dissenting opinion. (See Supreme Court: Justices In The Majority, Dec. 8, 2008; Supreme Court: Justices In The Majority [Part 2--And Compared to In Dissent], Dec. 17, 2008; Supreme Court: Justices In The Majority [Part 3--In Dissent Over What?], Dec. 20, 2008.)

For the next several posts, let's focus on one Justice at a time. Let's look at voting alignments--i.e., the frequency with which each Justice voted with each of the others. Let's also identify the cases in which the Justice in question broke ranks with his usual ideological allies--e.g., the decisions in which a typically conservative-voting Justice voted with the typically liberal-voting Justices and/or for the more liberal side of the Court's division on an issue. Together, the voting alignments and the "breaking ranks" will tell us a lot about each Justice. E.g., the Justice's usual allies, the strength of those alliances, and the kinds of issues which supersede those alliances and on which the Justice takes positions that diverge from his/her normal ideological leanings.

As is plain from Graph #1 above, this series of posts begins by focusing on Chief Justice John Roberts. Let's take a another look at that first graph, but this time let's order those same voting alignment percentages from highest to lowest. (Yes, "descending order." So I'll put that on the graph's title.)

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

What's clear from Graphs #1 & #2 is the wide range of Roberts' alignment with his colleagues. From a high with Samuel Alito to a low with Ruth Bader Ginsburg. 83% to 43%. Stated in the number of decisions out of the total of 15, that represents a wide range from 12 1/2 to 6 1/2. (So what's with the 1/2 decisions, you ask? Read below.)

[As explained in earlier posts (see, Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 4, 2008), the votes in each case are generally counted as either on one side of the issue decided by the Court or the other. In some cases, however, some votes seem more accurately treated as half and half. So, e.g., in Baze, on the constitutional validity of execution by lethal injection, the plurality opinion of Roberts was midway between the dissent of Ginsburg (joined by Souter), which argued that there were fatal constitutional problems, and the separate concurring opinion of Thomas (joined by Scalia), which saw no possible problem with lethal injection. So Roberts' vote, as well as the votes of those who joined him and his reasoning, is treated as in half agreement with the dissenters and half agreement with the separate concurrers. Similarly, in Moore, on the constitutional validity of a search conducted in violation of state law, although Ginsburg voted with the rest of the Court to uphold the conviction in question, her separate concurring opinion made clear that she took a significantly less pro-prosecution position than her colleagues. So her vote is treated as half with and half against the majority--which included Roberts. ]

Roberts' alignments can be grouped quite readily. Highly aligned with--i.e., he saw eye to eye a lot with--Alito (83%; 12 1/2 out of 15 decisions) and Anthony Kennedy (80%; 12 out of 15), and then Antonin Scalia (73%; 11). Minimally aligned with Ginsburg (43%; 6 1/2) and David Souter 47%; 7), and then Steven Breyer (57%; 8 1/2). So Roberts was highly aligned with 2 conservatives, Alito and Scalia, and with swing voter Kennedy. He was minimally aligned with 3 liberals, Ginsburg, Souter and Breyer.

Interestingly, Roberts aligned equally with liberal John Paul Stevens and conservative Clarence Thomas (67%; 10).

In short, what seems most telling, is that Roberts aligned the most with the somewhat moderate conservatives, Alito and Kennedy. He aligned the least with strong liberals Ginsburg and Souter. Additionally, Roberts did not align with staunch conservative Thomas at a very high rate. In fact, no higher than he did with Stevens, who is a pretty consistently liberal vote on the Court.

Now let's take those same voting alignments, but replace the percentages depicted in the first 2 graphs with the actual number of decisions (out of the total of 15) in which Roberts agreed with each other Justice. Let's also include non-alignment figures--i.e., the number of decisions in which Roberts disagreed with (and voted differently than) each of the others.

First, here's with the Justices in order of seniority, and including the Court as a whole.

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

And now, here it is reorganized, with Roberts' alignments in descending order.

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

The value of re-depicting the data this way in these last 2 graphs is the visual contrast it provides between the frequency of Roberts' agreement and disagreement with each of his colleagues. The graphs make vivid that Roberts agreed with some Justices much more than he disagreed. And with others, he disagreed almost as much as he agreed. Depicting the data this way in these 2 graphs also visually underscores the fact that Roberts did have a not insignificant (ok, significant) amount of disagreement even with some of his ideological allies. So, for example, he disagreed with Thomas fully 1/2 as much as he agreed with him. And he disagreed with Scalia almost as much.

This leads us to the other important matter to cover in this post. On what cases--more pointedly, what kinds of issues--did Roberts break with his usual allies and take a position somewhat atypical of his normal ideological leanings. In short, on what issues did he break with conservatives and vote with, and more like, a typical liberal Justice.

With Roberts, there were 6 "breaking ranks" cases (actually, 4 + 1/2 + 1/2) among the 15 "defining decisions." And they seem to have a pretty clear common thread.

Keep in mind that on most of the "cultural issues," "law & order," and "political process" decisions, Roberts voted for the more conservative position. In virtually all of those cases he voted for the same position as Thomas and Scalia. (Again, the "defining decisions" and the 4 different categories of cases included therein were spelled out previously on New York Court Watcher. See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in that series which are cited therein.)

But then there are the "discrimination" decisions. And there are 3 others: one categorized as both "cultural" and "law & order," one only as "law & order," and one as "political process." Indeed, the possibility of discrimination is present in all but one of these cases in which Roberts broke ranks. And even that one exception, dealing as it does with the death penalty, has at least the inseparable racial implications.

Among the decisions specifically categorized as "discrimination," Roberts broke with the conservative Justices and voted with the liberals in CBOCS (a claim against an employer for retaliating because of a racial discrimination complaint), Snyder (racial discrimination in jury selection), and Federal Express (an age discrimination lawsuit after an unheeded informal request to the EEOC for remedial action). He voted in favor of the claimant in each of those cases, and in doing so he took the opposite side from Scalia and Thomas.

The other 2 decisions with discrimination implications were: Kimbrough ("law & order"--upholding a sentence below the harsh guidelines for crack cocaine [n.b. the racial implications in the typically disparate treatment for crack versus powder cocaine]), and Crawford ("political process"--upholding a state voter identification law, but only on its face, thus allowing a future showing of discriminatory administration and impact; as opposed to Scalia, Thomas, & Alito who argued that such laws were justified period, regardless of possible incidental burdens; Roberts' vote in this case counts as 1/2 "breaking ranks").

The last case--the apparent exception to the common thread of discrimination--was Baze ("cultural" & "law & order"--upholding lethal injection only because not shown to cause unecessary suffering; as opposed to Thomas & Scalia who argued that only the most barbaric punishments such as drawing and quartering and burning alive would offend the Constitution; Roberts' vote in this case also counts as 1/2 "breaking ranks").

So there are the Roberts' "breaking ranks" votes. Of the 6 "defining decisions" involved, 5 clearly dealt with discrimination. The 6th involved the death penalty--again, never too far removed from concerns of disparate racial treatment. And in all 6, Roberts took a position at odds with the more conservative side of the issue in question.

So Roberts' record is generally quite conservative and he can be expected generally to vote with his colleagues on the right wing of the Court. On the other hand, where a case raises serious concerns about discriminatory treatment--and especially racial discrimination--Roberts displays a more liberal leaning and he frequently splits from his usual conservative allies.


In the next post in this series, we'll take a look at the Court's senior associate Justice--John Paul Stevens, one of the Court's more liberal members.

Supreme Court: Justices In The Majority (Part 3--In Dissent Over What?)

In this post, we'll take a quick look at each Justice individually. Specifically, we'll see the cases in which each Justice broke with the Court and dissented from its decision. What kinds of decisions did each Justice disagree with strongly enough to take a public stand against a majority of his/her colleagues? Now the answer to that question tells us a good deal. In other words, what's so important that it's worth dissenting? And what are the types of issues? Let's get going.

First, here's a graph that rehashes--in a way more immediately relevant to this post--the data and graphs in the previous posts in this series on the New York Court Watcher. (See Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent), Dec. 17, 2008; Supreme Court: Justices In The Majority, Dec. 8, 2008.) This graph simply depicts how often each Justice dissented--wrote or joined a dissenting opinion--in the "defining" cases.

GRAPH 1: Frequency in Dissent (#)
(click to enlarge)

The graph has the Justices in the order of their frequency in dissent--yes, that's obvious. The purpose--undoubtedly just as obvious--is to underscore the contrast from one end of the dissent (or out-of-the-majority) spectrum to the other. Look's pretty stark. For the discussion of each Justice, however, let's proceed in order of seniority. [For no particular reason other than that I'm a wee bit obsessive-compulsive. Actually more than a wee bit. God help my poor wife and kids who put up with me.]

John Roberts: He was with the Court majority in all but 3 of the defining decisions (i.e., 20% dissent).
He broke with the Court on the "cultural issues" in Kennedy (no death penalty for child rapists) and in Boumediene (habeas corpus for Gitmo detainees). He took the harsher/tougher stance against both rapists and detainees. He also disagreed with the Court in one of the discrimination cases, Gomez-Perez (treating retaliation for an age discrimination claim as prohibited age discrimination), on the ground that another remedy already existed.

John Paul Stevens: He was part of the Court majority in all of the defining decisions but 2 (13% dissent).
In Heller (the 2d Amendment provides an individual right to bear arms), he took the more limited view that the gun right is tied to the defensive needs of state governments; in Davis

(campaign finance restrictions on self-financed candidates violate free speech), he continued his support for campaign finance laws.

Antonin Scalia: He departed from the Court majority in 6 of the 15 cases (40% dissent).
He dissented on the same 2 "cultural issues" and in the same one discrimination case as Roberts (see Roberts, above). Plus, he disagreed with the Court majority in the other 3 discrimination decisions as well--CBOCS West (treating retaliation for a racial discrimination complaint as prohibited under anti-discrimination law), Federal Express (request for "change" satisfies pre-condition for an age-discrimination lawsuit), and Snyder (prosecutor's exclusion of juror was illegally race-based). He found no legitimate discrimination claim in any of these 3 cases, as he didn't in Gomez-Perez either.

William Kennedy: Part of the majority in every case (0% dissent). Now that's being the Court's center and swing.

David Souter: He departed from the Court's majority in 6 of the 15 decisions (40%).
He took more politically liberal positions in the "cultural issues" and "political process" cases. Regarding "cultural issues," in Heller (gun right is individual), Baze (upholding lethal injection), and Medellin (states not bound by Int'l. Ct. of Justice ruling, even w/ the President's endorsement), he voted in dissent, respectively, that the gun right was intended for state governments, that the current method of lethal injection has too high a risk of unnecessary pain, and that international law is binding under the Constitution. Analogously, in Williams (upholding child pornography criminal law), he dissented against the conservative cultural position and found 1st Amendment problems.
In the "political process" cases, he dissented from the Court's holdings in Crawford (upholding voter ID law) and Davis (invalidating campaign finance restrictions). He took the position that the ID law was an undue burden on voting rights and that campaign finance laws did not violate free speech.

Clarence Thomas: He took a different position than the Court majority in 7 of the 15 cases (47%).
Like Scalia, he dissented in all 4 discrimination cases, finding no legitimate discrimination claim in any of them. (See Scalia, above.) In the "cultural issues" cases, he, like Roberts and Scalia, voted to allow harsher treatment of Gitmo detainees (Boumediene) and child rapists (Kennedy). (See Roberts, above.)
Analogously, in Kimbrough (upholding a sentence more lenient than the guidelines for crack cocaine), he dissented to insist on the harsher punishment provided by the guidelines.

Ruth Bader Ginsburg: She broke with the Court majority in 6 of the 15 cases (40%).
Like Souter on the "cultural issues" (see Souter, above), she dissented in Heller (gun right), Baze (lethal injection) and Medellin (international court decision), as well as Williams (child pornography), taking the more liberal position. Same for the "political process" cases, Crawford (voter ID law) and Davis (campaign finance). (See Souter, above.)

Stephen Breyer: He was on the opposite side of the Court majority in 4 of the 15 cases (27%).
Like Souter and Ginsburg, he took the more liberal position in dissent in the "cultural issues" cases, Heller (gun right) and Medellin (international court decision)--but not in Baze (lethal injection) or Williams (child pornography). (See Souter, above.)
In the "political process" cases, he was again on the same side as Souter and Ginsburg, dissenting from the Court's holdings in Crawford (voter ID law) and Davis (campaign finance restrictions). (See Souter, above.)

Samuel Alito: He broke with the Court majority in 3 of the 15 cases (20%).
Like Roberts, Scalia and Thomas in 2 "cultural issues" cases, he opposed the majority's more lenient/protective treatment of Gitmo detainees (Boumediene) and child rapists (Kennedy). (See Roberts, above.) Likewise, he was on the same side as Thomas in Kimbrough (sentence for crack cocaine), dissenting to insist on the harsher punishment provided by the sentencing guidelines.

Now for each Justice, you know what to do: connect the dots! Once each Justice's dissents are laid out as we've just done, the common denominators and, thus, the patterns become pretty evident. As do the contrasts between the Justices.

For the next post, probably the last in this series, we'll look at those cases in which each Justice seemed to break--not with the Court majority--but with his/her typical political or ideological pattern. I.e., on what issues did a liberal Justice vote for the more conservative resolution, and vice-versa ? Or otherwise break from some voting pattern?

Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent)

GRAPH 1: Frequency in Majority (#)

(In Order of Frequency)
(click to enlarge)

Here's a reorganization of the data from GRAPH 1 of the first post in this series. The Justices are positioned from left to right in the descending order of their frequency in the majority, and the frequencies are in absolute numbers (out of the 15 "defining decisions") instead of percentages. Simple enough reorganization, but an even starker picture of what we're talking about. E.g., Justice Kennedy first on the graph, having been in the majority in all 15 cases; Justice Thomas last, in only 8 of the 15, the least among his colleagues. (This post will deal with different matters within the data than did the previous post which, of course, is still available for anyone who missed it or who would like a refresher: see Supreme Court: Justices In The Majority, Dec. 8, 2008.)

The graph below is yet another reorganization. This one highlights how frequently each Justice was out of the majority--i.e., in dissent, having written or joined a dissenting opinion. Also, the frequencies are in percentages of the defining decisions. This reorganized graph will hopefully help to underscore the extent to which each Justice breaks with the Court's/majority's decisions--or did so in the defining decisions in the '07-'08 term--and the nature of those departures. The latter is, in fact, the focus of the discussion following the graph.

GRAPH 2: Frequency in Dissent/Majority (%)
(In Order of Dissent Frequency)
(click to enlarge)

The contrasting amounts of the two colors for each of the Justices sums it up pretty vividly. Just contrast the relative amounts of red [maroon? burgundy? garnet?] representing dissents and blue [yep, blue] representing majorities for Thomas, the first Justice on the graph; then the same for Kennedy at the other end; then contrast the two. Now that's a heck of a picture for a heck of a contrast. It reflects the difference within the Court between Thomas at one ideological end of the Court (the right/conservative end) and Kennedy in the center and as the swing vote.

Look also at the contrasting amounts of garnet [I've now settled on that, since it's the color of my undergraduate alma mater, Union College in Schenectady.] for Scalia, Souter and Ginsburg on the one hand, and Roberts, Alito and Stevens on the other. The former group of three was more out of synch with the Court as a whole in the defining cases, and the latter group of three more in synch.

In the next post, we'll take a look at each Justice's particular departure's from the Court majority.

Supreme Court: Justices In The Majority

GRAPH 1: Frequency in Majority (%)
(click to enlarge)

This graph (along with the reorganized one at the end of this post) depicts how frequently each Supreme Court Justice was part of the Court's majority in the "defining decisions" discussed in several earlier posts. In other words, the graph shows the percentage of those particularly revealing cases decided in the '07-'08 term in which each Justice voted with the winning side. The figures reflect a fairly wide range among the Justices of agreement, or alignment, with the Court's decisions. From Justice Kennedy's 100%, to Justice Thomas's 53%.

Following Kennedy, Justice Stevens and then Chief Justice Roberts and Justice Alito were most frequently in the Court's majority. Following Thomas, Justices Scalia, Souter and Ginsburg were equally in the majority the least. Justice Breyer fell midway between the two groups.

Notably, the division between those Justices who were most frequently in the majority and those who were least frequently does not break down along ideological lines. Instead, the breakdown is along the grounds of ideological strength or purity. As would be expected, Kennedy, the moderate swing vote, tops the list as the Justice most often a part of the Court's majority. He was on the winning side in every one of the "defining decisions." He was followed by liberal Stevens (87%) and, then, conservatives Roberts (80%) and Alito (80%). At the other end of the agreement/alignment spectrum are the Justices whose records are even more strongly ideological. Hence, Thomas (53%), perhaps the Court's most ideologically conservative member, was the Justice least often on the winning side. He was followed by three other Justices who also have strongly ideological voting records: very conservative Scalia (60%) and very liberal Souter (60%) and Ginsburg (60%), with the same agreement/alignment records. The remaining Justice, liberal Breyer (73%), fell midway between the highest, Kennedy, and the lowest, Thomas.

This order and these figures are somewhat different than those given by others for the '07-'08 term. For example, Supreme Court litigator and SCOTUS blogger, Thomas Goldstein, has agreement/alignment with the majority in the following order: Roberts, Kennedy, Alito, Scalia, Breyer, Souter, and then Stevens, Ginsburg and Thomas in last place together. (His order is, of course, the same when he considers all the Court's decisions or only the non-unanimous ones. When the pool is limited to non-unanimous decisions, Goldstein's percentages do change. But because the same pool of unanimous cases is removed from all the calculations, the ordering is unaffected.)

The difference between the order and figures determined by others, such as Goldstein, and the ones presented here is simply explained. The pool of cases is very different. Goldstein's calculations, for example, are not based upon a particular set of decisions. Rather, his are based on the entire variety of decisions: the non-ideological as well as ideological, the commercial and technical as well as constitutional and criminal, the purely procedural as well as the substantive and policy-laden, non-political as well as political, the non-controversial as well as the hot-button, etc., etc. As explained in earlier posts on the New York Court Watcher, the focus here has been limited to those especially telling, highly charged "defining decisions" which entail strong ideological, philosophical and cultural values and interests. (See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008, and the several preceding posts in the series which are cited therein.) Just as those decisions are more revealing, so too are the order and figures based on them for agreement/alignment with the majority. They tell which Justices are in the majority and not--i.e., winning and not--in the cases which the Justices and the American public care most deeply about, have the strongest feelings about.

The next post will take a closer look at these agreement/alignment order and figures. In the meantime, as promised above, here's another graph. It provides another way to look at the same data depicted in GRAPH 1 above. It puts the Justices in order of their respective agreement/alignment with the majority, the scale is the actual number of decisions rather than percentages, and it also includes the flip-side of agreement/alignment--i.e., voting in dissent.

GRAPH 2: Frequency in the Majority and Dissent (#)
(click to enlarge)

GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process)

This post takes all the data from the previous posts in this series and combines them into one graph. All the "defining decisions" from the Supreme Court's last term--the rulings and the votes in selected cases involving discrimination claims, "cultural issues," law & order, and the political process--are recapped in a single graph that depicts the justices' respective positions on the Court's ideological spectrum. Not surprisingly, that spectrum is wide and clear. That is, at least with regard to which justices' voting records place them at the ends of the spectrum, and which fall closer to the Court's center.

[The previous posts on the New York Court Watcher examined the four identified categories of defining decisions and provided graph-ic recaps along the way. See Supreme Court's 2007-08 Term: The Defining Decisions (Part 4: Political Process), Nov. 8, 2008; Another GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order), Oct. 24, 2008; (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008; GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; (Part 2: Cultural Issues), September 20, 2008; (Part 1: Discrimination), September 16, 2008.]

Here's the graph-ic culmination of all those previous posts:

GRAPH 1: Recap
Discrimination + Cultural Issues + Law & Order + Political Process Decisions
(click to enlarge)

OK, so what's clear? Some things are clear simply by looking at the graph. Some by also recalling the graphs and a bit of the discussion in the previous posts.

First, as for the Court as a whole, the record is quite balanced between liberal and conservative decisions. That might be unexpected. But the explanation here is the Court's record in the discrimination cases included in the "defining decisions." The Court rendered "liberal" decisions--i.e., it sided with the party complaining about race or age discrimination--in every one of those cases. That tempered the Court's otherwise fairly conservative record.

Second, both ends of the Court's ideological spectrum are unmistakable. At one end, Ginsburg and Souter both have strongly liberal voting records--almost perfectly so--in each of the four categories of cases. Ditto for Thomas and Scalia at the conservative end.

Third, Breyer and Stevens have voting records which place them firmly on the liberal side of the Court, but not quite at the far end with Ginsburg and Souter. Breyer broke with the liberals several times on law and order, as well as in one political process case. Stevens broke with the liberals even more frequently on law and order, as well in the cultural issues cases.

Fourth, Roberts and Alito are firmly within the Court's conservative wing. Both of them, however, sided with the liberals in every discrimination case, and Roberts did likewise on some law and order issues.

Fifth, Kennedy in the middle. He was with the liberals in every discrimination case. His votes were evenly split on the cultural issues. His record on law and order leans conservative, and on political process issues even more so.

There you go. A neat little nutshell. It's not all there, of course. That would take a lot more than a few brief posts (ok, not always so brief) and graphs (however "nifty" and telling). But it certainly gives a bird's eye view.

That our Court. That's what we've got. Let's see if Obama's election precipitates some retirements. And then all the fascination and fun of speculating about his possible appointees and of watching the nomination hearings and other developments. Great stuff for Court junkies. And extremely important stuff for all of us.

Supreme Court's 2007-08 Term: The Defining Decisions (Part 4: Political Process)

With the election this past week, it could not be more appropriate to now consider the "political process" decisions--the last of the decisions that we've (ok, I've) deemed to be "defining" of the Court's last term. The three in this final category all pertain to elections. They involve voting, nominating, and campaign spending.

[For previous discussions on the New York Court Watcher about other categories of last term's defining decisions, see Another GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order), Oct. 24, 2008; Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008; GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; (Part 2: Cultural Issues), September 20, 2008; (Part 1: Discrimination), September 16, 2008.]

Another GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order)

Here's a sweet graph--actually two. "Sweet" because they say so much so quickly. One graph depicts the cumulative voting records of the justices and the decisional record of the Court in the three categories of "defining decisions" discussed thus far in previous posts on the New York Court Watcher. These are decisions from selected cases dealing with discrimination, hot-button cultural issues, and criminal justice. In short, this graph combines the voting and decisional data from those three sets of cases. (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008; GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; Part 2: Cultural Issues, September 20, 2008; Part 1: Discrimination, September 16, 2008.)

The other graph is simply a rearranging of the Law & Order graph posted a few days ago so that, like all the other graphs, the listing of the justices from left to right conforms to most liberal to most conservative voting records. Here's that one first. (As always, click to enlarge.)

GRAPH 1: Law & Order Decisions

Now like I said, we've seen that one before. Just ordered in reverse. But just take another look. From left to right. From Ginsburg and Souter to Thomas and Alito. How many paragraphs or pages is that worth? Well that's the spectrum in criminal cases. (And what about blue for the libs and red for the conservatives? I hope someone enjoys this as much as I do. It does seem particularly fitting at this time with all the maps of blue states and red states that fill the election news on CNN & MSNBC & FOX--yeah, I'm a junkie for that stuff too.)

Now for the graph that puts it all together. Well, all except the "political process" decisions which will be the subject of the next post in this series. So this graph is an update of the last "GRAPH-ic Recap" (September 24, 2008). It adds the newly discussed criminal cases--the "Law & Order" category of defining decisions--to that previous recap. Here it is:

GRAPH 2: Discrimination + Cultural Issues + Law & Order Decisions
(click to enlarge)

Again, how many paragraphs or pages is that worth? Notice the spectrum here. Still Ginsburg and Souter on the left end. But on the right it's now Thomas and Scalia. Not Alito. Although his record in the defining criminal cases put him to the far right because his voting is among the most pro-prosecution within the Court, his overall voting record is less conservative. This is largely because of his record in the discrimination cases which, as we have previously seen, placed him with the Court's liberals. So when all these defining decisions are taken together, Thomas and Scalia--as Court watchers would expect--are at the far right end of the Court's spectrum. Alito, like Roberts, has a conservative voting record. But it is not as ideologically lopsided, absolute, rigid, consistent, reliable, faithful--or whatever characterization one might prefer, depending on whatever sort of ideological judging one might prefer.

Anyhow, more on the voting records and the Court's spectrum in the next post in this series. It will take a look at selected "defining" cases in which aspects of the political process were challenged. And, of course, the cases are ideologically charged.

Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!])

Well, the 1st Monday in October has come. The Court is back. The new term has begun. And what can we expect?

That question is exactly why we are looking at last term. What the Court decided and how the individual justices voted. It's the best way to get some ideas about how the Court and how the justices will behave this term.

This is the 3d post --4th if the "graph-ic recap" post is counted--in a series on New York Court Watcher looking at decisions that define the Court's '07 - '08 term. (See GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; Part 2: Cultural Issues, September 20, 2008; Part 1: Discrimination, September 16, 2008.) This installment looks at "law and order." The decisions and individual votes in criminal cases--again, especially the difficult, controversial, big-issue cases--tell us a great deal about how the Court and each of its justices balance crime control against due process (and sometimes against other critical interests as well). Three cases we have not yet discussed in previous posts seem particularly telling. These, when viewed together with 3 other criminal cases already considered under "cultural issues," provide decisional and voting patterns that afford insight into the ideological leanings of the Court, collectively and individually, in criminal justice matters.

Here's how the Court's decisions and the Justices' votes in these law and order cases look in graphic form. (Again, click to enlarge.)

GRAPH 1: Law & Order Decisions

OK, looks nice, and hmmm, interesting. But let's talk about the cases the graph reflects.

The 3 criminal cases we have not yet discussed are:
United States v. Williams (2008) - the federal statute criminalizing pandering and soliciting child pornography is constitutional: it is not "overbroad" (i.e., it is not so broad that it incidentally criminalizes too much constitutionally protected expressive activity), nor is it "void for vagueness" (i.e., it satisfies the constitutional due process requirement that laws be clear enough to know what is prohibited).
Votes (7-2): Roberts, Stevens [wrote concurring opinion], Scalia [wrote Court's opinion], Kennedy, Thomas, Breyer, and Alito versus Souter [wrote dissent] and Ginsburg.

Virginia v. Moore (2008) - an arrest and search that are illegal under the law of the state where made are not "unreasonable" under the constitution and, thus, do not violate the constitutional right against unreasonable searches and seizures.
[The Court reversed the decision of the Virginia Supreme Court--that wild bastion of liberalism--which had held that the illegal arrest and search were constitutionally unreasonable.]
Votes (9-0): Roberts, Stevens, Scalia [wrote Court's opinion], Kennedy, Souter, Thomas, Ginsburg [wrote separate opinion], Breyer, and Alito.

Kimbrough v. United States (2007) - the federal sentencing guidelines are advisory only and, thus, a trial judge may choose to impose a lesser sentence for a crack cocaine crime than the guidelines prescribe--which is 100 times more harsh than for a powder cocaine crime.
Votes (7-2): Roberts, Stevens, Scalia [wrote concurring opinion], Kennedy, Souter, Ginsburg [wrote Court's opinion], and Breyer versus Thomas [wrote dissent] and Alito [also wrote a dissent].

As for the 3 criminal cases discussed previously under "cultural issues" (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues), September 20, 2008), they are:
Kennedy v. Louisiana (2008) - capital punishment is an unconstitutional penalty for non-homicidal child rape.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter, Ginsburg, and Breyer versus Roberts, Scalia, Thomas, and Alito [wrote dissent].

Baze v. Rees (2008) - the lethal injection used in Kentucky and other states is constitutionally permissible.
Votes (7-2): Roberts [wrote Court's opinion], Stevens [wrote separate opinion], Scalia [wrote separate opinion], Kennedy, Thomas [wrote separate opinion], Breyer [wrote separate opinion], Alito [wrote concurring opinion] versus Souter and Ginsburg [wrote dissent].

Medellin v. Texas (2008) - American courts are not bound by a ruling of the International Court of Justice enforcing the rights of the accused guaranteed by an international treaty ratified by the United States, despite the President's declaration that the ruling and the treaty are binding international law.
Votes (6-3): Roberts [wrote Court's opinion], Stevens [wrote concurring opinion], Scalia, Kennedy, Thomas, and Alito versus Souter, Breyer [wrote dissent], and Ginsburg.

So, in terms of law and order:
In Williams it was crime control (child pornography) versus the First Amendment. [Crime control/the prosecution won.]

In Moore it was crime control (police latitude to arrest and search) versus the restrictions imposed by state law. It was also the Supreme Court's sole power to decide what the constitution allows, requires and prohibits versus the power of a state to affect that determination. [Crime control/the prosecution won.] Note the analogous conflict in Medellin. That case pit the same sole power of the Supreme Court to decide what the constitution allows, requires and prohibits versus, in Medellin, the power of another institution--whether the International Court of Justice, the President, or the international legal obligation of treaties--to affect that determination. [Crime control/the prosecution won.]

In Kimbrough it was crime control through harsh punishment versus equitable treatment of similar offenders. It was also the power of judges to determine an appropriate sentence versus the power of the legislature to limit judges' discretion. [Due process/the accused won.]

In Kennedy it was crime control through the ultimate penalty versus proportionality in punishment. [Due process/the accused won.]

In Baze it was crime control through the ultimate penalty versus avoidance of needless cruelty. [Crime control/the prosecution won.]

Now, let's look at that graph again. (Once more, click to enlarge.)

GRAPH 1: Law & Order Decisions

[One explanatory note about the graph. Although the votes in each case are generally counted as either simply pro-prosecution or pro-accused, in some cases some votes were deemed half and half. So in Moore, although Ginsburg voted with the rest of the Court to uphold the conviction, her separate concurring opinion made clear that she took a less rigid pro-prosecution position than her colleagues. So her vote was deemed half pro-prosecution and half-pro-accused. Similarly, in Baze, as discussed in the previous post on cultural issues, the plurality opinion of Roberts was ideologically midway between the separate concurring opinion of Thomas (joined by Scalia) which saw no possible problem with lethal injection and the dissent of Ginsburg (joined by Souter) which argued that there were fatal constitutional problems. So the votes of Roberts and those who joined him and his reasoning were deemed half and half.]

Not surprisingly, Thomas, Alito, Scalia, and Roberts have the most pro-prosecution (most conservative) voting records in these cases--and in that order in these cases. Ginsburg and Souter have the most pro-accused (most liberal). Stevens and Breyer, whose voting records are generally ideologically comparable to those of Ginsburg and Souter, are somewhat more conservative in these cases. Breyer, whose record in these 6 cases is still more liberal than that of the Court as a whole, voted with the conservatives to uphold the child pornography law in Williams, to uphold lethal injection in Baze, and to protect the Court's sole power to interpret the Constitution against competing state judgements in Moore. In addition to those pro-prosecution votes, Stevens voted with the conservatives in Medellin to protect the Court's sole interpretive power against international judgements as well. Kennedy, the swing vote, voted the same as Stevens in each case. That again placed him in the ideological center of the Court--as it also placed Stevens in these cases.

Well how does all this add up so far?

The next post in this series--a brief one--will view all the cases discussed thus far collectively (anti-discrimination, cultural issues, and law and order) in a single graph accompanied by a few short notes. The following post will look at the "political process" cases--the last category. Finally, one last post in this series will view all 15 cases in a collective graph with a few concluding observations.

GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues)

There are words, and there are pictures. Here is a recap in pictures--okay, graphs--of the previous 2 posts on the New York Court Watcher: the Court's "defining decisions" last term dealing with discrimination and cultural issues.

Three graphs. (Click on them for a bigger, better look.) The first depicts the Justices' voting in the 4 discrimination cases discussed in Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination) (September 16, 2008).

GRAPH 1: Discrimination Decisions

Yep. There's the Court, there's most of the Justices, and then there's Scalia and Thomas. Hey, like it or not, good or bad, that's how they voted. For those 2, some other interest or value was superior to fighting (or seeing) discrimination in each of the cases.

The second graph depicts the Justices' voting in the 5 culturally charged cases discussed in Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues), (September 20, 2008). You'll see that the Justices are rearranged. In each graph they are ordered from left to right according to their voting records along the liberal-conservative spectrum for the cases involved.

GRAPH 2: Cultural Issues Decisions

A bit different. A few things pop out. The Court--and Kennedy--are half and half in these cases. (Liberal and conservative, that is.) Scalia and Thomas are again at the far right end of the Court, taking the more conservative position in every case. On the other hand, Souter and Ginsburg are the sole occupiers of the liberal-most end of the Court; only they voted on the culturally liberal side in all 5 cases. And, finally, you'll notice some 1/2 votes for some Justices, and 1/2 decisions for the Court. It's about the Baze decision on lethal injections. I thought it most accurate to treat the votes this way. Against lethal injection as liberal (Souter and Ginsburg). For lethal injection, and any other means of execution not like those historically "torturous modes" "deliberately designed to inflict pain," as conservative (Scalia and Thomas). And for lethal injection, but because it was not shown to pose any real risk of severe pain that could reasonably be avoided by some alternative method, as 1/2 liberal and 1/2 conservative (Roberts, Stevens, Kennedy, Breyer, Alito, and the Court itself).

The third graph merely combines the first 2 to get a full picture of the liberal-conservative spectrum based on the Justices' political/ideological/philosophical voting in the discrimination and cultural issues cases together.

GRAPH 3: Discrimination + Cultural Issues Decisions

There it is. That's the Court. At least on these 2 sets of "defining decisions." And that's just about the spectrum that Court watchers have been observing generally--take or leave some votes here and there. Certainly the ideological ends and sides of the Court are exactly what would be expected. And moderate-swing vote Kennedy right in the middle. Not bad for 9 cases.

One final note.
Now a mere 9 decisions--4 on discrimination and 5 on cultural issues--may seem a bit thin to be deemed "defining." But just think of this. A coin is flipped 9 times. Every time it's heads. Wouldn't you be a bit skeptical? You think the coin just might be biased? At least a bit? Well the odds of 9 out of 9 heads actually happening randomly are 1 in 512. A probability of .5 to the 9th power, or .0019. Now THAT's what's pretty thin. So just say a Supreme Court Justice happened to vote "heads" in every one of 9 difficult, ideologically/politically charged, "reasonable people could disagree" cases. You think that Justice, like the coin, just might be biased? Let's be delicate and call the Justice "philosophically predisposed." And a Justice with a more even voting record, is probably less predisposed--at least along the same political/ideological/philosophical lines.
..............And that, of course, is why it's so important who's elected President and what sort of Justice(s) he's likely to appoint.

Tne next "defining decisions" post will look at "law and order" cases.

Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues)

This is the second in a series of 4 posts on the New York Court Watcher exploring the current political-legal state of the Court. 15 decisions from last term were selected, not for any magic in that number, but rather because those 15 seem especially telling about the ideological and philosophical voting patterns of the individual justices. The last post looked at discrimination cases. The results of that examination were not entirely surprising, not entirely expected, and, with respect to the Court's newest member, were undoubtedly different than what would have been predicted from someone called "Scalito." (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008; but see also Well, Not Exactly NOT "Scalito" Either, August 12, 2008).

This post looks at 5 decisions grouped as "cultural issues" because, well, they seem to me to deal with issues that engender a rather high intensity of "cultural" divisiveness. And, indeed, these decisions are divided. And also (yes, Sister Mary Grace would be appalled at my grammar & syntax; but it seems to fit here), the divisions are clearly deep. The decisions involve guns, the death penalty, war, and international law.

Let's first look at each of the 5 decisions, including the legal rulings, the cultural wedges, and the justices' votes. Then we'll take a look at all the decisions and votes as a whole to see what patterns emerge and what they tell us. (Of course, you can just skip to the last couple of paragraphs for the recap. I confess, it's not exactly a Hitchcock ending.) Here are the decisions:

District of Columbia v. Heller (2008) - the right to bear arms in the Second Amendment is a fundamental right of individuals, not just states; the D.C. ban on handguns violated that right.
Cultural wedge: guns versus gun control.
Votes (5-4): Roberts, Scalia [wrote Court's opinion], Kennedy, Thomas, and Alito versus Stevens [wrote dissent], Souter, Ginsburg, and Breyer [also wrote a dissent].

Kennedy v. Louisiana (2008) - capital punishment is a disproportionate and, thus, unconstitutional penalty for child rape.
Cultural wedges: death penalty versus evolving standards; severe punishment for heinous crime versus proportionality and restraint.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter, Ginsburg, and Breyer versus Roberts, Scalia, Thomas, and Alito [wrote dissent].

Baze v. Rees (2008) - lethal injection is a constitutionally valid form of capital punishment, unless the particular method poses a real risk of reasonably avoidable severe pain.
Cultural wedge: death penalty versus prohibition on cruel punishment.
Votes (7-2): Roberts [wrote Court's opinion], Stevens [wrote separate opinion], Scalia [wrote separate opinion], Kennedy, Thomas [wrote separate opinion], Breyer [wrote separate opinion], Alito [wrote concurring opinion] versus Souter and Ginsburg [wrote dissent]. (Yeah, divisions within divisions on this one!)

Medellin v. Texas (2008) - American courts are not bound by a ruling of the International Court of Justice (ICJ), even where the President declares the ruling to be obligatory international law. (A brief summary of the background will underscore the political-legal implications: In state courts around this country, including in Texas, Mexican and other foreign nationals had been criminally prosecuted without an opportunity to seek help from their nations' embassies. That violates the Vienna Convention, a treaty ratified by the United States. The ICJ ruled that the foreign nationals have a right to a hearing in the American courts to reconsider their convictions in light of the treaty violations. The President issued a memorandum declaring the ICJ ruling to be binding international law, and the United States government argued the same at the United States Supreme Court. Nevertheless, the Supreme Court sided with Texas which refused to follow the ICJ ruling--including in this murder case which resulted in a death sentence. Ahhhh, the implications!!)
Cultural wedges: local/state government versus international law; nationalism versus internationalism; law and order versus international rights of the accused.
Votes (6-3): Roberts [wrote Court's opinion], Stevens [wrote concurring opinion], Scalia, Kennedy, Thomas, and Alito versus Souter, Breyer [wrote dissent], and Ginsburg.

Boumediene v. Bush (2008) - alien detainees held at Guantanamo Bay are entitled to a habeas corpus hearing to review their "enemy combatant" status.
Cultural wedges: war on terror versus due process; the President versus the Justices.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter [wrote concurring opinion], Ginsburg, and Breyer versus Roberts [wrote dissent], Scalia [also wrote a dissent], Thomas, and Alito.

There are the 5 decisions. In short: yes to gun rights, yes to lethal injection, and no to the ICJ; but then, no to the death penalty for child rape and yes to habeas corpus for Guantanamo detainees. So 3 for the cultural conservatives; 2 for the cultural liberals.

[Disclosure time. I agree with the Court's decisions on gun rights, lethal injection, and habeas corpus for the Guantanamo detainees, but disagree with the decisions on the ICJ and on the death penalty for child rape. I've discussed some of these in previous posts. (See Supreme Court: Right on the Gun Right, June 27, 2008; Supreme Court: No Death Penalty for Child Rape, June 25, 2008; The Boumediene Decision: 5 to 4 ??, June 14, 2008. And more generally, see Supreme Court's 5-4 Hottest Hot-Buttons: Decision By Ideological Division (Of Course!), July 25, 2008.) So, like the Court, that puts me with the cultural conservatives on 3 of the decisions and with the cultural libs on 2, even though my mix is different.]

Unlike the Court itself (or me, see above), the four conservative justices voted for the culturally conservative position in all 5 cases. Roberts, Scalia, Thomas, and Alito constituted a monolithic conservative bloc, taking the culturally conservative side in every case.

On the other hand, the liberals were not quite so uniformly unanimous. Only two of them, Souter and Ginsburg, voted for the culturally liberal position in every case. Stevens and Breyer voted with the conservatives on lethal injection. And Stevens voted with the conservatives again on the ICJ.

Moderate-conservative swing vote Kennedy voted for the culturally conservative position in 3 cases and the cultually liberal position in 2. He was on the winning/majority side of the Court in all 5 cases.

Finally, although the current Court is clearly conservative politically, culturally, and philosophically, it's decisions are not always conservative. Even in the emotionally and ideologically charged cases. The four strongly conservative justices are not always able to get the vote of one more colleague. Even when all four of the conservatives vote together. Indeed, even when they do vote together and do get at least one more vote to make a majority, they don't always agree on the reasoning. That is, in plainspeak, they don't always agree on what the law is--or should be--that led to the decision in the case. And sometimes the differences are stark. Sometimes some of the conservative justices, even when voting for the culturally conservative position, adopt reasoning--i.e., again governing law--that sounds awfully liberal. Especially when contrasted with the reasoning of the other conservative justices.

Take, for example the Baze case, where the Court approved lethal injection. The Court's opinion, written by Roberts, adopted the position that a particular method of lethal injection, or any other method of execution, would be unconstitutional if it caused needless suffering. Put more legalistically, a method of execution would be unconstitutionally cruel and unusual if there was a substantial risk of severe pain that could be significantly reduced by a readily available alternative method. In plain English: no more pain than really necessary. But even though the Court approved the lethal injection at issue in the case, a couple of justices found the standard enunciated by the Court to be far too soft--too namby-pamby, so to speak.

You guessed right: Scalia and Thomas. For them, an execution method is only unconstitutional when it is specifically intended to cause suffering. "Only if it is deliberately designed to inflict pain," in Thomas's words joined by Scalia. "Burning at the stake," "public dissection," "[dis]emboweling," "quartering"--only these and similarly "torturous modes of punishment" were intended to be and, thus, are unconstitutional according to those two.

The point is that although the conservative justices all voted for the same result in all of these 5 "cultural issues" cases, there are some clear differences among them. Just as there are among the liberals. Certainly, Scalia and Thomas seem to be in a category by themselves. (Along those same lines, again see Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008.) And if one were to sort out the justices from the most conservative to the most liberal--at least according to these "cultural issues" decisions, as well as the discrimination decisions examined previously--the spectrum might look like this:
Most Culturally Conservative....to
....Most Culturally Liberal
Scalia, Thomas..........Roberts, Alito.............Kennedy.......
.......Stevens....Breyer...Souter, Ginsburg

The next post on "defining decisions" will look at "law and order."