Diary

The Supreme Court Term to Date

Thus far, the Supreme Court has heard oral argument in 61 of 68 cases this term.  They have reached decisions and issued opinions in 26 of those cases heard thus far.  The vast majority of these cases have been 9-0 unanimous decisions with four other 8-1 near unanimous decisions.  In fact, at this point in the term 50% of their decisions have been at least 8-1 which is slightly below the 52% average over the last ten years of the Roberts court.

Much is made over the alleged partisanship on the Court.  Yet, over the last ten years, only 15.5% of all decisions have been 5-4 while thus far this term, a mere 16.7% of cases have been 5-4 decisions which is certainly near the 10-year average.  In summary, this term is not really out of the ordinary so far.

This should change somewhat as they approach decisions in some controversial cases.  But as it stands now as to Justice agreement, Chief Justice Roberts is finding his greatest agreement with two of the more liberal members of the Court- Stephen Breyer and Ruth Bader Ginsburg- in non-unanimous decisions.  After those two, he is most in agreement with Justice Alito.

We can sort of split the Supreme Court into three factions- the liberals, the conservatives and the moderates.  On the liberal side, we have Ginsburg, Kagan, Sotomayor and, to a lesser extent, Breyer.  On the conservative side is Alito, Scalia and Thomas with Thomas being the most conservative.  Sotomayor would be the most liberal.  That leaves Roberts and Kennedy as the moderates although Roberts skews as far right as Breyer skews left.  The one block that has held the most ideological purity as far as votes goes is the liberal wing with a 66.7% agreement rate.  Conversely, the conservative wing has consistently held together 54.8% of the time.  Most importantly is which way the moderates tend to go.  My analysis shows 60.7% agreement with the liberal wing and only 30.2% with the conservatives

The interesting part of the moderates- Roberts and Kennedy- is that they agree with each other only 35.7% of the time.  Personally, I believe there remains some animosity between Kennedy and Roberts over the original Obamacare.  Does this infer that Roberts is drifting from the conservative faction?  This term thus far his greatest agreement is with both Breyer and Ginsburg and his lowest agreement is with Thomas and he is only at 50% with Scalia.

There is a bizarre dynamic going on here.  While a case can be made that Roberts is drifting from the right, an equal case can be made that Kagan is slightly drifting from the left.  Although she still has strong agreement with her fellow liberals, it is less than in previous terms and she is becoming a Justice with more in common with Roberts and Kennedy.  She has even agreed with Thomas in 4 of 14 non-unanimous cases this term whereas Sotomayor has 0% agreement with Thomas and less than 50% with Alito and Scalia.

As far as the big cases decided thus far in less than unanimous decisions, a few need mentioning.  Dart Cherokee Basin Operating vs. Owens was the first 5-4 decision that brought a stark rebuke from Scalia in dissent regarding a broad reading of statutory interpretation (which would not potentially bode well in the Burwell Obamacare case).  The North Carolina Board of Dental Examiners vs. FTC case which denied antitrust immunity for professional boards saw Roberts and Kennedy side with the liberal wing and rightfully so.  In Yates vs. United States, expansion of Sarbanes-Oxley to other areas of law enforcement as concerns the destruction of evidence was at issue.  This brought about a strange dissenting contingent consisting of Kagan, Scalia, Thomas and Kennedy who sided with the government.

In the Alabama redistricting case, Kennedy sided with the liberals.  However, this was not a total loss for the conservative wing when it comes to voting rights and racial gerrymandering.  The case was sent back to the District Court with instructions.  In effect, they ruled that the courts, when looking at redistricting, must consider the ability of minorities to be elected and not to draw district lines that ensure a certain number of minorities be elected.  Another 5-4 case, the Wong case, is hardly one that would cause great controversy as it involved the concept of “equitable tolling” which is when the clock starts to run for statute of limitations purposes.

Perhaps the most controversial decision thus far is Armstrong vs. Exceptional Child Care which stated that Medicaid providers cannot challenge a state’s reimbursement rates.  There was much surprising agreement between the majority and the dissent in this case.  They all agreed that this was a question of equity and that such causes of action could be foreclosed by Congress.  The difference was in the when and how of that foreclosure.  In effect, the dissent sort of agreed with the majority, but disagreed in this particular case.  Breyer joined most of the decision because of the statute’s administrative complexity, but also said that in this particular case, there could be a conceivable cause of action.  In effect, he straddled the line but was unwilling to go over that line.  In conclusion, this decision mandated that plaintiffs cannot sue the state for reimbursement rates since it was the federal government that is supposed to enforce these broad provisions.  If federal law is being violated in the allegation, then other plaintiffs may seek an injunction against state reimbursement rates.  That is, the courthouse door was shut on Exceptional Child Care, but not on other potential plaintiffs in the future.

Just as a teaser, we are awaiting decisions in some other potential blockbuster cases.  The Zitofsky case pits the Executive against the Legislative branches in foreign policy which can have huge consequences beyond the place of birth on a certificate or passport.  The Elonis Facebook threat case is one with First Amendment Free Speech implications and how far postings on social media can go.  Sort of under the radar is an important tax case- Comptroller vs. Wynne.  Skirting the edges of campaign finance law is the Florida Bar case while a case out of Arizona can torpedo state independent redistricting commissions.  The Burwell case challenging Obamacare’s offer of subsidies is an important one with respect to statutory interpretation and the future of the ACA while the Confederate flag case out of Texas, the EPA case out of Michigan, the raisin case out of California and the gay marriage cases all have profound implications.

As these decisions are announced, a more detailed analysis will be provided of those implications.  Safe to say, with oral arguments winding down and the pace of decision announcements heating up, there will be plenty of opportunity to praise or vilify the Court in the coming months.