Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining? (Part 2)

GRAPH 1
Conservatives vs. Liberals
Writing & Voting in Dissent
The contrast is stark. Conservative versus liberal Justices. The number of dissents last term. Both writing dissents and casting votes in dissent. The conservative Justices didn't dissent nearly as frequently as the liberal Justices did. They apparently had much less to complain about. Chief Justice Roberts, and Justices Scalia, Thomas and Alito were apparently much happier with the Court's decisions than were Justices Stevens, Souter, Ginsburg and Breyer.

As reflected quite vividly in Graph 1, the liberal Justices authored nearly twice as many dissenting opinions as did the conservatives. And the liberal Justices cast more than 1 and 1/2 times as many votes in dissent as did the conservatives. Total dissenting opinions: liberals 54, conservatives 29. Total dissenting votes: liberals 105, conservatives 66.

So it's clear who's winning the battle of dissents. But, of course, that also means it's clear who must be winning the battle of majority opinions. Winning the battle of decisions. Winning the battle of winning at the Court. The conservatives.

Back to the flip side for the liberals. They were dissenting much more. Complaining much more about the Court's decisions. Losing much more. Without looking at a single individual decision, these numbers say a lot about how the liberals and the conservatives fared last term. About the state of the Court and its case law last term.

In the previous post on New York Court Watcher, we looked at the number of dissenting opinions written last term by each Justice. (See Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining?, Sept. 15, 2009.) Now let's look at the number of total dissenting votes for each Justice--whether writing a dissenting opinion or joining one. We'll take the graphs from the last post, which depicted the number of dissents written by each Justice, and add a depiction of the total dissenting votes cast by each of them.

GRAPH 2
Who's Dissenting & How Often?
Number of Dissents Written & Voted
Immediately apparent from Graph 2 is the contrast between the 2 senior Justices. As we already saw in the last post, liberal Justice Stevens, the Court's Senior Associate Justice, wrote 11 more dissenting opinions than conservative Chief Justice Roberts. As additionally depicted in this graph, we see that Stevens cast 15 more total dissenting votes than did Roberts. 31 to 16. Virtually twice as many.

Also, the Justices whose dissenting frequency comes closest to Stevens's are 2 other liberals, Souter and Ginsburg. Each cast a total of 25 dissenting votes. Next comes the remaining liberal on the Court, Justice Breyer, with 24.

In short, the Court's 4 liberal Justices were the Court's 4 most frequently dissenting voters. This corroborates what we just saw regarding the total combined liberal dissenting votes versus the total combined such votes of the conservatives. And it underscores even further what we saw in the last post regarding the number of dissenting opinions by the 4 liberals versus the number for the 4 conservatives.

Let's reorganize Graph 2 to place the Justices in order of their number of dissenting votes, from low to high--in ascending order of dissenting-vote frequency, to state it more primly. As with the reorganized graph in the last post, this one offers little solace for liberals and much welcome news for conservatives.

GRAPH 3
Who's Dissenting & How Often?
Number of Dissents Written & Voted
(in ascending order of dissenting votes)
Reading Graph 3 from the far left shows Justice Kennedy--again, the Court's usual swing voter--not surprisingly with the fewest dissenting votes. We already saw that he had written the fewest dissenting opinions. Now we see that the total number of votes he cast in dissent, 6, was also the lowest among the Justices.

Following Kennedy, with the next lowest total of dissenting votes, are Roberts, Scalia and Thomas--each with 16. Then Alito with just 2 more. These Justices, the 4 who comprise the Court's conservative wing, are the ones who, except for Kennedy, cast the fewest dissenting votes.

Let's put it another way. Every conservative Justice voted in dissent fewer times than any of the liberals. Breyer cast 24 dissenting votes; Souter and Ginsburg 25 each; Stevens 31. Every liberal Justice voted in dissent more times than any of the conservatives.

Combine the numbers as we did in Graph 1 above and recall: liberals 105, conservatives 66. The liberals are winning big in the number of dissenting votes. That translates into the conservatives winning big in majority votes and, in turn, decisions of the Court.


In future posts we'll take a look at the decisions themselves. The numbers, the rulings, and the implications.

Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining?

Dissents are fascinating. Much more so than majority opinions. At least insofar as what they tell us about the individual Justices.

GRAPH 1
Who's Dissenting & How Often?
Number of Written Dissents
Dissenting opinions, much more than majority opinions--and infinitely more than unanimous ones--are personal statements of the author. They represent matters that are sufficiently important to the dissenter that the Justice feels compelled to take the Court to task openly, feels compelled to specify the irreconcilable disagreement that has instigated the public protest, and feels compelled to explain why the disagreement is so significant.

So the dissenting opinions tell us a good deal about the author. And, they also tell us a good deal about the Court as a whole. They tell us about the disagreements that are actually dividing the Justices and about which we would not otherwise know. The actual disagreements which would otherwise be concealed. The disagreements which would otherwise be glossed over--i.e., avoided or "fudged"--in a unanimous decision.

As Herman Pritchett would say, these dissenting opinions--and the resulting divided (non unanimous) decisions--allow us to peek into the "inner sanctum" of the Justices' deliberations and discussions about the issues. They allow us to see what we otherwise would not. So they reveal a great deal about the Court. And even more profoundly and personally, about the dissenting Justice.

For this first New York Court Watcher post reviewing the Supreme Court's last term, let's start to look at the dissents. For now, let's just look at how many dissenting opinions were written by each Justice. How many times did each Justice feel compelled to write about his or her disagreement with the majority of the Court. Not how many times each Justice voted in dissent--whether writing or joining a dissenting opinion. (We'll get to that later.) But how many times each Justice actually wrote and signed an opinion saying, in effect, "My colleagues are wrong on this matter which is simply too important for me to be silent."

As depicted in Graph 1, there is a wide range of difference among the Justices in the number of dissenting opinions they each wrote last term. Beginning with the first 2 Justices on the graph, Chief Justice John Roberts and Senior Associate Justice John Paul Stevens, the contrast is stark. Stevens wrote nearly 3 times as many dissents as did Roberts: 17 to 6.

Fascinating and revealing. Why? Well consider these facts alone. Roberts is quite conservative and, as Chief, he is the leader (at least formally) of the conservative Justices on the Court; Stevens, being the Senior Associate, holds the same position among the Court's liberals. The leader of the conservatives wrote only 1/3 as many dissents as the leader of the liberals. Stated otherwise, the leader of the liberals publicly protested the Court's decisions 3 times as frequently. That is probably a darn good indication that the liberals had more to complain about than the conservatives. That the latter might well have had a much more successful year than the former.

Let's explore that just a bit more. In Graph 1, the Justices were ordered according to seniority. If that graph is reorganized so that the Justices are ordered in ascending number of written dissents, some things become even clearer. Indeed, some very interesting facts emerge. Facts suggesting some disturbing patterns for liberals. Lat's look at the reorganized graph.

GRAPH 2
Who's Dissenting & How Often?
Number of Written Dissents
(in ascending order of dissents)
Not surprisingly, swing-vote Justice Anthony Kennedy wrote the fewest dissenting opinions. As we've seen in past years, he is in the majority more frequently than any of his colleagues. In fact, especially in the hot-button cases where the Court is deeply divided, he is usually the Justice whose vote makes the majority. He's usually the 5th vote for the 5 to 4 majority.

But beyond Kennedy is what is very interesting and what suggests something disturbing for liberals. Look at the Justices who dissented the least last term. Other than Kennedy that is. As depicted in Graph 2, they are Roberts, then Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The Court's 4 staunch conservatives. They were the ones who felt compelled to dissent the least often.

At the other end of the spectrum--ideological as well as dissent frequency--are Stevens, then Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg. The Court's 4 fairly reliable liberals. They are the ones who dissented the most. They are the ones who most frequently felt compelled to openly disagree with decisions of the Court. They are the one's who protested the most, while the 4 conservatives protested the least.

The suggestion in that is strong. It certainly reinforces the initial indication mentioned previously when the dissent records of Roberts and Stevens were contrasted. It would certainly seem that the conservative Justices likely had a much better year at the Court than did the liberals. They certainly didn't write as many dissents as the liberals.

Well, we'll look more closely at the patterns and trends in subsequent posts.

In the next post on New York Court Watcher, we'll look at the total number of dissenting votes for each Justice. How many times each Justice took sides against the Court's decision, whether by writing a dissenting opinion or joining one (i.e., voting in favor of one) written by a colleague. Chances are, the results will be similar to what we saw here. But we shall see.

Supreme Court: 5-4 Against West Virginia Justice--Only 5-4 !!!

This was not a difficult case. It was one of the easier ones.

But the current Court--the Supreme Court, whose foremost role is to safeguard the Constitutional guarantees for a free society, such as due process--just barely got it right.

Many if not most of the cases that get to the nation's highest court are tough. They're close. Reasonable, smart, conscientious judges can and do disagree about what the decision should be.

In those more typical cases, there is law supporting both sides. There are good reasons, policies and principles favoring each side. The Justices are required to judge. To exercise judgment. To pick the best result. What they believe is the best result. The text of the Constitution or of legislation virtually never dictates one particular result. (Sorry, but notwithstanding the political nonsense, judging at high appeals courts ain't that simple.)

There's no mechanical way to resolve the issues. It's not just a matter of here are the facts, here is the law, here's the answer. It's not: he was driving 70 mph, the limit is 50, so he's guilty of speeding. Such cases where the law is similarly certain and its application to the facts is clear are extremely rare at the Supreme Court. Such cases are decided much further down the chain of command.

The simple reality is that most cases that get to the Supreme Court can go either way. The Justices must pick and choose. They must decide what the law "is"--speaking realistically, what the law shall henceforth be. They're making law. They have to. (Again, forget the nonsense to the contrary.)

Some cases, however, are a bit easier than others. Even if the law is not otherwise clear. Even if there are precedents and relevant written provisions to support both sides. In these easier cases, one resolution is pretty obviously the wiser and most fair and most consistent with the highest constitutional principles.

That was the kind of case the Supreme Court decided Monday. Caperton v. Massey Coal Co. was the official name. But it was about Brent Benjamin. He is a West Virginia justice who refused to disqualify himself in the Caperton lawsuit.

To appreciate what was going on, let's try this.

Imagine you're involved in a legal dispute with a big company. At the trial, you proved your case. The company was ordered to pay back the money you lost because of its fraud.

Imagine further, that the company appealed to your state's supreme court. In the meantime, however, there would be a judicial election, and the head of the company you had successfully sued decided to get involved. In fact, he spent $3 million helping to defeat a sitting justice and elect the challenger.

Imagine now, that when your case gets to the state supreme court, your lawyer asks the newly elected justice to recuse himself. I.e., to remove himself from the case and to let the other justices decide the appeal without him. Your lawyer argues that the new justice shouldn't be ruling on a case involving someone who just spent $3 million to get him elected. But the new justice insists on participating.

Finally, imagine that the state supreme court decides the case by a 3-2 vote. And it's the new justice's vote that made the difference. Unfortunately, but not unexpectedly, he voted in favor of his benefactor's company. So the verdict you won at trial against the company has been overturned.

Of course, you can't believe that's fair. How could that justice be allowed to rule on your lawsuit against the company that just spent $3 million to get him elected? Your lawyer complains to the United States Supreme Court that your federal constitutional guarantee to due process was violated. That Court agrees to hear your appeal.

That is the Caperton case that the Supreme Court decided Monday. And only a bare 5-4 majority of the Court's Justices found that the state justice should have recused himself. More than that, the Court divided along ideological grounds--liberals versus conservatives. The 4 liberal Justices voted that constitutionally guaranteed due process required the state justice to recuse himself under the extreme facts of the case. The 4 conservative Justices saw no due process problem. According to them, the Constitution was not offended by a state judge ruling on a matter involving his $3 million dollar election supporter. The liberals won because swing voter, Justice Anthony Kennedy, sided with them.

How is the right to a fair hearing before an impartial judge a liberal versus conservative issue? Of course it's not. Or it shouldn't be. But maybe there's something else.

Maybe the vote at the Supreme Court is really about sympathies for or against the defendant. It's a big coal company. Or maybe it's really about sympathies for or against the state justice in question. He is a Republican. And the sitting state justice he challenged and defeated, with the help of the big coal company, is a Democrat. Could the vote at the Supreme Court reflect such crass partisan politics?

What did the Justices say in their opinions?

Justice Kennedy emphasized that this was an extreme case. Among the crucial factors was the enormous amount spent to help elect the new state justice. The timing of the expenditure--i.e., while the appeal was pending. And the fact that the benefactor of the state justice was directly involved in the case--i.e., not just some person or entity with some interest in the outcome.

The common standard under rules of judicial ethics prohibits a judge from participating in a case when reasonable people would question that judge's impartiality. Under that standard, the state justice clearly should have recused himself. But the Supreme Court decides what the federal Constitution requires, not the rules of judicial ethics. That is, what does due process require? Stated otherwise, what does fundamental fairness demand, or prohibit?

In his opinion for the Court's majority, Justice Kennedy wrote that due process demands that a judge recuse himself when--and only when--there is a real probability of bias. As he restated it: when there is a substantial risk of actual bias on the part of the judge. Kennedy and the 4 liberals (Stevens, Souter, Ginsburg, and Breyer) concluded that there was such a risk in this extreme case. The state justice should not have participated.

The 4 dissenting Justices spoke through Chief Justice John Roberts. Joined by the other conservatives on the Court (Scalia, Thomas, and Alito), Roberts' main point was that the majority failed to articulate a clear standard for deciding these types of cases, and that it would be very difficult to do so. To demonstrate his point, Roberts listed 40 questions about the standard that the majority did apply in this case.

(It is hard to read Roberts' dissenting opinion without getting the impression that he's more a lawyer advocating for a particular position, than a judge trying to resolve an issue. It reminds me of students who write "research" papers that are really arguments for opinions they've already held, rather than conclusions actually reached after disinterested study of the questions supposedly being examined.)

In any event, Roberts is undoubtedly correct that the majority's standard is not particularly clear. At the least, it will not clearly provide the answer to future, more difficult, closer cases. BUT, that is an argument for a clearer standard. For a standard more readily applied. It is NOT an argument against the majority's conclusion that the state justice in Caperton should have recused himself. It is not an argument against the proposition that basic due process DOES require judges to recuse themselves in similarly extreme cases.

But beyond that, there is a deeper flaw in Roberts' dissent. And he's a smart fellow. He knows it. The majority's standard is not particularly clear? It will take other cases to clarify the standard? Come on! Under that argument, precious little would ever have been decided by the Supreme Court. That's an argument for judicial paralysis. For constitutional paralysis.

Let's see. The Constitution's guarantee against unreasonable searches. Hmm, "unreasonable?" The Supreme Court certainly did not--in the past or yet--establish a clear standard which would resolve all future cases.

The right against compelled self-incrimination. Hmm, "compelled?" Struggled with that one for a long time, and still does.

Due process. Hmm, what process is "due?" It only took about 100 years from the adoption of the 14th Amendment for the Court to decided that jury trials, the assistance of counsel, the right to confront adverse witnesses, the right against double jeopardy, the self-incrimination privilege, and other protections we now take for granted were part of the process required as "due" in all criminal cases. And that standard continues to be refined in many cases before the Court every year.

Then there are the standards for what speech, press and religious exercise are "free." Oh, and that's true even though the Constitution literally allows "no law" prohibiting those freedoms. The Court has never stopped trying to refine the standard for "no law"--since the literal standard used by the Framers wasn't really so clear either!

And of course there's the 2d Amendment. The language and the case law haven't exactly provided clarity.

What about "equal" protection?

Okay, we could go on ad nauseam. But the point should be clear. Standards rarely are. And even when they are, they are repeatedly refined as the cases and the times require. So this objection of Roberts and the 3 who joined him in dissent is pretty lame.

At least it is lame as an argument against deciding whether the West Virginia justice should have recused himself. Yes, he should have. As a matter of basic due process. Now, Roberts et. al., argue for a better standard if you think the majority's was not clear enough.

One final observation. There was the other point emphasized in Roberts' dissenting opinion. That the majority's decision will undermine confidence in the judiciary. Apparently, the Supreme Court deciding that a state justice was wrong to participate in a case and should have recused himself will hurt the reputation of courts and judges.

Well, no. What undermines confidence in the judiciary and hurts the reputation of courts and judges is a judge whose impartiality is highly suspect. A judge on the state's highest court who sits on a case involving the $3 million supporter of his recent election to the bench. (Let alone a judge who then votes to overturn a judgment against that benefactor.)

What also undermines confidence in the judiciary is a United States Supreme Court divided along politically ideological lines in a case such as this. Where only a bare majority say that that state judge should have recused himself. And where the Supreme Court Justices who sided with the state judge just happen to be aligned with his political party and with his more conservative politics.

As I said at the outset, this was not a difficult case. How was it just 5-4? And how was it divided along politically ideological grounds?

Just another illustration of the need for a truly great new Justice or two , to help raise the level of this Court's decisionmaking.