Part 13: Disclosure--Vin's Hypothetical Voting. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

First, a prefatory note.
Yes, I'm politically partisan (a Democrat) and ideological (pretty liberal), and I certainly have personal preferences, perspectives, and predispositions.
Just like other members of the species. Including judges.

But judging isn't about deciding cases to favor one's political party or to promote one's ideological policy preferences.

To be sure, judging isn't, can't be, and shouldn't be entirely neutral, mindless, or robotic.
Judges should--and the best of them do--have well informed and well considered understanding--i.e., views, ideas, wisdom--about the judicial role, about constitutional government, about liberty and authority and rights and responsibilities in a free society, about the rule of law, and other essential facets of governance in a republic.
And judges should--and the best of them do--inform their decisions with such understanding and wisdom.

That is far far different, however, than decisionmaking shaped by partisan bias or ideological predisposition. Unfortunately, as we have been seeing in this series, decisionmaking at the current Supreme Court--the Justices' voting--has been marked by just such partisanship and ideology.

But....on to the subject matter at hand. Yes I'm a partisan and yes I'm ideological. But that is a far different matter than how I would vote as a judge--or think I would vote if actually operating within that cauldron of the Court.

Not that I'm sure I'm right--if there is such a thing in these matters. But only that my own views of the judicial role, constitutional government, etc. (see above) would lead me to vote a particular way in these cases. And readers of New York Court Watcher are entitled to know since I've been unabashedly skewering the Justices for the way they have been voting.

So here goes. I've incorporated my own hypothetical voting into the graphs we've seen in previous posts.
First, those cases with the highly partisan-charged issues.
[And no, I didn't fix my votes to come out a certain way! This is actually how I would have voted on the issues.]

(click to enlarge)

GRAPH 1

 And the Democratic flip side.

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GRAPH 2

Yes, I would have voted in half those highly charged cases like a partisan Democrat would have voted, and half like a partisan Republican.

Part 12: [yes, still] A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

[Well...I, and a few others, believed that Chief Justice Roberts would want to avoid a 5-4 straight party line vote on Obamacare. And he did just that.

But now, lots of folks, including some who should know better, are claiming that the Obamacare decision shows that Roberts and his Court are not really as political as...well, as political as they really are. 

So, one more installment of "Shameless Partisans."]

The Chief Justice was strategically brilliant in the Obamacare decision. On several levels.

Constitutionally: Roberts--with the votes of the 4 other Republicans on the Court--restricted the interstate commerce power of the federal government. A huge victory for Republicans and conservatives.

Politically: He--with the votes of the 4 Democrats on the Court--upheld Obamacare (under a curious application of the the fed's taxing power). A huge victory for Democrats and liberals.

Judicially: He showed that his Court--especially he--does not simply decide cases like political partisans or ideologues.

And yes, as to that last one, he seems to have succeeded in persuading lots of people. Including, as I've already mentioned, commentators and supposed experts who really ought to know better.
[Yes Gramps, the world's a fake.]

So let's return to reality. Not contrivance, wishful thinking, or politically or partisan-motivated nonsense. Let's look at the actual record.

Here are some voting figures we've seen previously in this series. But here they are in graphs highlighting the divide between the 4 liberal/Democratic Justices and the 4 conservative/Republicans. Take a look.

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GRAPH 1

And the flipside of the same figures--just in case some of you prefer the perspective from the Democratic angle.

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GRAPH 2

No matter which way you look at it, there's a 94% difference in the voting between Court's lib-Dems and con-Repubs. That's a 94% partisan disparity in the voting average of the 4 liberal/Democratic Justices (Ginsburg, Breyer, Sotomayor, and Stevens-Kagan) and the voting average of the 4 conservative/Republicans (Roberts [yes Roberts!], Scalia, Thomas, and Alito).

Part 11: A Court of Shameless Partisans. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

They're not judging; they're taking partisan sides.
They're not interpreting the law; they're choosing interpretations that fit their politics.
They're not neutral, detached arbiters of the law of the land; they're partisan politicians pushing their preferred policies.

That may sound harsh. It is.

This current Supreme Court is a disappointing, dysfunctional, dishonor to what the nation's highest Court is supposed to be. Certainly to what it has been at times in its history.
Times when it was truly the nation's most trusted and trustworthy branch. The nation's conscience. The nation's guardian of what we cherish most about our Republic. The nation's keeper and teacher of our loftiest aspirations.

No, the Court hasn't always been the ideal we were told that it was in grade school, or that the Court's own public relations touts. No, the Court has had its ups and downs in history. And we're now in one of those downs.

No real doubt about it if we're honest.

New York Court Watcher is not talk radio, and it's not FOX News. Criticism of the Court here is not any nonsense about liberal activist Justices making law instead of applying it. But neither is it about conservative Justices doing exactly the same, only in the opposite direction.

No, both conservatives and liberals on the Court are making law. Just as the Supreme Court always has and always must if it is to decide the cases about fundamental issues that have always come before it for resolution. Since the beginning of the Republic.

The denunciation here--yes, that's what it is--is about the Justices being blatant, blind or deliberate (?),  extreme, yes, shameless partisans. Both the conservatives and the liberals.

Part 10: Focus on Retired Justice Stevens. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice John Paul Stevens.
Now retired; he was the immediate predecessor of Justice Kagan.

His final year on the Court was 2009-2010.
That's the first of the 2-year period we've been examining in this series of posts.
So, if for nothing else but completeness, we'll look at Stevens record for that year.

He was appointed by a Republican, President Gerald Ford.
But over the years, Justice Stevens' voting became increasingly liberal.
He eventually became the leader of the liberal wing of the Court.

Stevens sympathized with the policy priorities and preferences of liberal Democrats on most issues, and his scathing dissent in Bush v. Gore was no surprise. In fact, that dissent actually mirrored others he authored condemning the rightward--and Republicanward--drift of the Court on many issues.

Let's take a quick look at his record in that final year before he retired.

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GRAPH 1

Of the 12 highly partisan-charged cases decided by the Court in the 2-year period we've been examining in this series, 7 were decided during Stevens' final year. He voted the same way a Democratic politician would be expected to vote in all but 1. That's 86%.

Part 9: Focus on Justice Kagan. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Elena Kagan.
President Obama's 2nd appointee.

Neutral, non-partisan, non-ideological, disinterested, detached, moderate, and leaving policy up to the other 2 branches.

Just like the rest of the Justices.

Which means not really, not much, maybe not at all.

Justice Kagan was a member of the Court for only the latter of the two terms examined for this series of posts. But even after just one term, there is little that's ambiguous about her record. At least with regard to the partisan and ideological character of her voting.
[For earlier discussions on New York Court Watcher about Justice Kagan and her confirmation hearings, see
http://www.newyorkcourtwatcher.com/search/label/Kagan_Elena]

So, what does Kagan's record look like for that one year--her first year on the Court? Let's begin, as usual, with those highly partisan-charged cases.

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GRAPH 1

100% voting like a partisan Democratic politician would.

Part 8: Focus on Justice Sotomayor. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Sonia Sotomayor.

Appointed by President Obama.

Her votes on guns? Gays? God? Immigrants? Campaign finance?

Just guess!

And you'd probably guess right.

We looked at Sotomayor's record when she was nominated and being confirmed for the Supreme Court.

We looked at her voting and her opinions as a federal appeals judge.

Republicans were insisting she was unsuitable, and even a racist, because of her "wise Latina" comment.

Democrats were insisting she was a "moderate" without an ideological bent.

She was insisting that her role as a Justice would simply be to "apply the law" and not to make law or policy.

Of course, what both the Republicans and the Democrats were saying was pure nonsense.

And what she was saying was at least as preposterous.

We discussed all of that on New York Court Watcher in a series of posts. Among other things, we examined Sotomayor's record on the 2d Circuit Court of Appeals. It was pretty revealing. Indeed, it was pretty plain for anyone willing to take a look.

And for anyone who bothered to take a look--or simply to read the discussions and look at the graphs on New York Court Watcher!--there would be no surprise with what Sotomayor's record on the Supreme Court would be.

Her record was one of a political, ideological liberal, and, of course, she voted to make law and policy just as every appellate judge does.

[For the examinations of Sotomayor's record on the 2d Circuit, see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009; (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009;(Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.) See also Sotomayor--Let's Put the Cards on the Table (SS on the 2d Amendment), Aug. 4, 2009.

For discussions of her confirmation hearings, see Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009: (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.]

So let's look at Sotomayor's record at the Supreme Court. Just as we have for the other members of the Court we've already focused on in this series.

As I've previously suggested: no surprise.

Part 7: Focus on Justice Alito. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Samuel Alito.
The 2nd appointee of President Bush the Younger.

We looked at his record 2 years ago in a series of posts: "Alito's Goat--What Gets It?" Specifically, we looked at his dissents. We looked to see what majority decisions bothered him enough that he was moved to expend his time, effort, and collegial capital to author public disagreements, cum complaints, about a rulings of his Court.
[See Justice Alito's Goat--What Gets It? (Part 1), Feb 6, 2010; (Part 2: His Dissents), Feb. 22, 2010; (Part 3: Connecting the Dots), Feb. 28, 2010; (Part 4: One Last Thing), Mar. 27, 2010.]


Now let's look at Alito's record the way we've been looking at other Justices' records in this series. Looking at how partisan his voting has been. How ideological. How activist.


And as we have done with the others, let's look at Alito's numbers. Look at them in graphs that permit easy comparison with those of the other Justices, and then briefly discuss what lies beneath the numbers.


Here is how Alito's voting looks in those highly partisan-charged cases. 

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GRAPH 1

92% voting like a partisan conservative Republican politician in the highly charged cases. That places Alito's record in the same extremely partisan class as that of all the Justices we've previously focused on, except for Kennedy. (N.B., we have yet to look at the records of Justices Sotomayor and Kagan.)

Part 6: Focus on Chief Justice Roberts. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Now for the Chief.
John G. Roberts.
The "umpire." That's what he insisted a Justice should be during his confirmation hearings.

Yes, deciding cases by simply applying the rules and policies set by others. Others like the Legislative and Executive Branches and by the states. Pretty mechanistic. Is it a ball or a strike? Is the runner safe or out?

It's all a matter of the rules and policies already established by others. Not by the Justices. Objective, neutral, detached decision-making. Not according to the Justices' own preferences or views or politics.

OK. So let's look at the numbers for Chief Justice Roberts. The very same data and analyses we've used in the previous posts in this series for other members of the Court. And we'll look at that data in a same set of graphs. In fact, let's do that at the start and discuss later.

Here's the graph depicting Roberts' voting record in those very highly partisan-charged cases.

(click to enlarge)
GRAPH 1

So he voted in 92% of the highly charged cases like a partisan, conservative Republican politician would.

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

Let's turn to Justice Stephen Breyer.

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

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

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

(click to enlarge)

GRAPH 1

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

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

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

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

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

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

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

How partisan her record?
Take a look.

(click to enlarge)

GRAPH 1

100% partisan, that how much!

Part 3: Focus on Justice Thomas. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

In previous posts, we looked at the voting patterns of Justices Scalia and Kennedy. We also compared them to each other, as well as to the decisional patterns of the Court as a whole.

(See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, May 1, 2012; Part 2: Focus on Justice Kennedy, May 3, 2012.)

Now let's take a look at Justice Clarence Thomas's record.
[As stated in part 1, the several posts to appear in this series are based on my research over the past few weeks. The pool of cases on which my findings are based is again explained at the end of today's post.]

We'll again begin our look with those cases that dealt with the very highly partisan-charged issues.

(click to enlarge)

GRAPH 1

Like Scalia, Thomas voted in every one of those cases the way a conservative Republican politician would have. Yes, 100%. Like Scalia, he didn't once oppose the position that would be favored by conservative Republican senators, congresspersons, or other politicians in these very partisan-charged cases. In short, his voting record mirrors that of the most partisan Republicans.

Part 2: Focus on Justice Kennedy. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Well, what about Justice Kennedy?
The widely recognized "swing vote" on the Court.
How partisan? Ideological? Activist?

In part 1 of this series, we took a look at Justice Antonin Scalia. In short: very partisan, very ideological, and a vigorous judicial activist.
(See Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!, MAY 1, 2012.)

Now let's turn to the next most senior member of the Court--i.e., next longest serving Justice. The other remaining appointee of President Ronald Reagan. Anthony Kennedy. We'll do so using the same research and applying it to the same sort of graphs we did with Scalia in part 1.


[As stated in part 1, the several posts to appear in this series are based on my research over the past few weeks. The pool of cases on which my findings are based is explained at the end of today's post.]

Take a look. How frequently did Kennedy vote like a conservative Republican politician would have? And how frequently like a liberal Democratic politician? Here it is.

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GRAPH 1

Kennedy's voting is certainly more like that of a conservative Republican than like a liberal Democrat. Indeed twice more.

But his record does not indicate the kind of hyper-partisanship that is evident in Scalia's voting. Kennedy actually did vote for some results that would be favored by liberal Democratic politicians.

Supreme Court: How Partisan? Ideological? Activist? (Part 1: Focus on Scalia) --with graphs!

Just how partisan is the Court?
And more specifically, each Justice?

[The several posts to appear in this series are based on my research over the past few weeks. The pool of cases on which my findings are based is explained at the end of today's post.]

First, let's consider GRAPH 1.
In in recent years, how did Justice Antonin Scalia vote when there was a clear, strong, politically partisan divide? That is, how did he vote in cases where there was a clear and strong divide on how conservative Republican politicians and liberal Democratic politicians would vote? Cases dealing with highly charged political issues such as immigration, campaign finance restrictions, gun rights, and government aid for religious schools.
Just how frequently did Scalia vote for the position that would be taken by a conservative Republican politician? By a liberal Democratic politician?

(click to enlarge)

GRAPH 1

Yes, Scalia's record is that stark. It is that one-sided.
[Again, the pool of cases selected for this study, including the narrower pool of 12 reflected in Graph 1, is more fully described at the end of this post.]

In cases with clear, strongly partisan positions on opposing sides of the issue, Scalia's voting was 100% partisan conservative Republican. That is, he voted in every one of those cases the same way a conservative Republican politician would have been expected to vote.

Let me be blunt, in every one of those highly political cases, he just happened to interpret the Constitution or some federal law in a way that supported the result that a conservative Republican politician would favor. Hmm.

Before discussing other findings, together with the related graphs, allow me a few prefatory words.

Many, if not most Court watchers, think that the Court today is extremely partisan. That the Court is deeply divided along politically partisan lines. Others who generally follow politics seem to share that belief.

Supreme Court: Highlights...(Part 16--Full Disclosure in Graphs: My Hypothetical Voting Patterns)

This post continues and concludes my full disclosure cum self-therapy and self-awareness. I've collated the Justices' votes, added my own hypothetical ones, and depicted the resulting patterns graphically.

Without delay, here goes. Which Justices would I have voted with the most, and which the least? The graph:
GRAPH 1
Voting Agreement and Disagreement
(click to enlarge) 














Yes, I would have voted with Chief Justice Roberts the most! In the "Top Ten" highlight cases of the Court's last term, I would have voted with Roberts more than anyone else. Well, tied with Justice Kennedy. I'm not too surprised about Kennedy. But Roberts?

Kennedy the swing vote, OK. But Roberts, the Rehnquist-protege conservative? Well, I've double checked the numbers and they're accurate.

And I actually agreed with the Court itself in a full 7 out of 10 of the cases! What can I say. I'm surprised. (Disappointed?)

In any event,  here's the same data in a less cluttered graph:
GRAPH 2
Voting Agreement
(click to enlarge)














I apparently agreed with each of the remaining 7 Justices to nearly the same extent. Justices Ginsburg, Breyer, Alito and Sotomayor just a bit more than Stevens, Scalia and Thomas.

Now, let's reorganize the Justices on the graph into ideological camps.

Supreme Court: Highlights...(Part 15--Full Disclosure in Pics: How I Would Have Voted )

I've previously noted my agreement with Justice William O. Douglas's view that legal analysts and commentators ought to disclose their predilections. At least from time to time. In this way, the reader or listener has a better idea of the possible biases that might be influencing what is being presented. (See William O. Douglas, Law Reviews and Full Disclosure, 40 Wash. L. Rev. 227 [1965]. And see, e.g., a recent post on New York Court Watcher: Supreme Court: Highlights...(Disclosure--How I Would Have Voted in the Free Speech Values Cases), Oct. 29, 2010.)

Also, readers of this blog seem to respond to the "disclosure" posts more than any others--those and the post-season "Saratoga Highlights" posts. And, yes, like the "Saratoga Highlights," I have fun doing the "Disclosures." Self-therapy?

First we'll look pictorially at my hypothetical votes alongside the Justices' real ones in each of the cases. Later, we'll look graphically at my hypothetical record alongside the real ones for the Justices--restraint versus activism, and politically conservative versus politically liberal.

Supreme Court: Highlights...(Part 14--Restraint vs Activism?: GRAPHIC Recap of All)

As we did last post, here's the graph without delay. 
GRAPH 1
Restraint (deference) vs Activism (invalidate)
(click to enlarge)  
Which Justices practiced judicial restraint? That is, judicial "modesty and humility"--as Chief Justice Roberts said he would at his confirmation hearings.

You know, deference to the lawmakers. Respect for the choices of the Congress and the States. Reluctance to overrule their decisions. Affording considerable leeway to those more accountable, more democratic, more representative, closer-to-the-people arms of the government.

In short, invalidating a law enacted by Congress or the States only when that law is clearly unconstitutional. When there's no doubt about it. The law violates an unmistakable command of the Constitution.

So which Justices practiced the John Roberts "modesty and humility" of  judicial restraint? More precisely, how frequently did each Justice exercise judicial restraint? And how frequently the opposite--i.e., the apparently dreaded judicial activism? How frequently voting to overrule the people's representatives?

Supreme Court: Highlights...(Part 13--Partisanship?: GRAPHIC Recap of All)

Without delay. Here's the bottom line--graphically.
GRAPH 1
Politically Conservative vs Politically Liberal
(click to enlarge)
Justices Scalia and Thomas, perfectly politically conservative. Chief Justice Roberts and Justice Alito, very much so. Justices Ginsburg, Breyer, and Sotomayor, perfectly politically liberal. Justice Stevens (now retired), nearly so.

Justice Kennnedy, typically the swing vote, was significantly more politically conservative than liberal. The Court as a whole, slightly less so.

Supreme Court: Highlights...(Part 12--GRAPHIC Recap of Criminal Cases [Restraint? Partisanship?])

There is so much talk about the need for judicial restraint. Politicians (especially Senators during the Supreme Court confirmation process), commentators, and some Justices themselves, speak about it passionately, religiously, robotically. You know: judicial restraint good; activist judges bad. The dichotomy is largely nonsense. It is also an extremely poor proxy for what the restraint partisans actually do and don't want from judges.

A major tenet of judicial restraint, if not the major tenet, is that judges should defer to the choices of the other branches and of the states. Judges should uphold the laws enacted by the Congress and the states, unless those enactments clearly violate the Constitution. Judges should not invalidate the choices of those more democratic, majoritarian, more-accountable-to-the-people, and closer-to-the-people arms of the government. The duly enacted laws of Congress and the states should be left alone by the judiciary, unless they are unconstitutional beyond a reasonable doubt.

In today's political and judicial discourse--and I don't mean to suggest that those two are necessarily distinct--it is typically the conservative politicians and judges who advocate restraint. It is the liberal judges who are typically accused of being activists. Of course, who's accusing who is oftentimes reversed. It depends on the case and the issue. (E.g., who votes to invalidate affirmative action laws? gun control laws? campaign finance laws? etc., etc.)

Supreme Court: Highlights...(Part 11--GRAPHIC Recap of Criminal Law & Related Voting)

In the last several posts, we examined the Justices' voting in the criminal law and related cases included among last term's "Top Ten" highlights. Now let's collate what we've seen. And let's do so in graphs.

We'll combine the data from the 5 cases, consider that data from several angles, and then depict the results in graphs. Indeed, this post's center of gravity will be graphs. Not the least because many readers of New Court Court Watcher understandably prefer to look at a few graphs than to wade through the [i.e., my] verbiage. Plus, graphs can show pretty starkly what the Justices really are and are not doing, regardless of their verbiage. Plus plus, I do get a kick out of these graphs--apparently a symptom of my accelerating geekage.

So let's get on with the graphs.

Supreme Court: Highlights...(Part 10--Even More Criminal Law: "Honest Services" and Guns [continued])

In McDonald v. Chicago, the Court ruled that the recently recognized 2d Amendment right of individuals to keep and bear arms was applicable against state and local laws, not only against federal ones. This is the last of the 5 criminal law-related cases among the "Top Ten" highlights of last term.

The Court had previously decided, in D.C. v. Heller (2008), that the 2d Amendment guarantees the firearm right to individuals, not simply to states to form and maintain organized militias. But because the Bill of Rights, ratified in the early years of the Republic, provides protections only against the federal government, the question remained whether such an individual firearm right was sufficiently fundamental to be a protection against state and local government infringement as well. That is, speaking constitutionally, whether the firearm right is part of the "liberty" that is guaranteed against state governments and their subsidiaries by the 14th Amendment--one of the Amendments ratified after the Civil War.

In McDonald, a 5-4 majority answered in the affirmative. State and local gun control laws throughout the country are now subject to close constitutional scrutiny. Undoubtedly, many of them will be casualties of the McDonald ruling.