Diary

The Great SCOTUS Apocalypse of 2016 That Never Happened

The Supreme Court ended the 2015 term last month with the biggest news being the death of Antonin Scalia and the ensuing drama over his replacement.  Seizing on an opportunity to replace an iconic conservative voice on the Court, we heard the thunderous dire predictions that justice would grind to a halt because there were only eight Justices.  This was Obama’s chance to change the direction of the Court towards the liberals.

Except two strange things happened along the way.  First, we are in a presidential election year and the GOP used this to deny Obama a choice for Scalia’s replacement, rolling the dice and leaving that decision to the next president.  Second, all those dire warnings largely did not come to pass.  In fact, there were exactly four 4-4 decisions which leave the lower court rulings intact and perhaps become a battle for another day.

Those 4-4 ties were:

  1. Hawkins vs. Community Bank of Raymore- a case of statutory interpretation with all the drama of paint drying;
  2. Friedrichs vs. California Education Association- a “win” for the liberals over union fees being used for political purposes;
  3. Texas vs. United States- a “win” for conservatives in that it blocks Obama’s immigration Executive power grab in limbo with an injunction against enforcement, and;
  4. Dollar General vs. Mississippi Tribe of Choctaw Indians- a case that allows a civil tort proceeding to continue in a tribal court.

Along the way, there were enough decisions to make liberals and conservatives happy.  For example, affirmative action stood in the Fisher case out of Texas and they even forged an 8-0 decision regarding the contraceptive coverage mandate in Obamacare in favor of the government.  Scalia’s presence would have made no difference in the Texas abortion law case except for a likely colorful dissent.

They also forged an 8-0 decision against the environmental over-reach of the government in a case out of Alaska.  Civil libertarians should be happy: breathalyzer tests are constitutional, but blood tests need a warrant.  There was even agreement and consensus on what to do about Puerto Rico.

In fact, looking back on the term, 45.5% of all cases were unanimous decisions which is above the ten-year average for the Roberts Court.  The ten year average for 5-4 cases is 21.6%; this year it was 13.6%.  In short, despite only eight members, tie votes were uncommon and the lack of consensus was equally uncommon.

Some interesting tidbits from the previous term:

  • Justice Clarence Thomas actually led a line of questioning during oral argument, something he never does;
  • Because he does not ask questions during oral argument, the Left likes to portray him as a dunce.  But, he lets his pen do the talking.  Thomas wrote 39 opinions this term either majority, dissenting, or concurring;
  • The next closest to Thomas in number of written opinion of any kind (and it isn’t even a close race) is Samuel Alito with 18;
  • The least prolific writers this past term was a tie between Chief Justice John Roberts and Justice Elena Kagan;
  • Chief Justice had the greatest degree of agreement in non-unanimous cases with Justice Anthony Kennedy, but he agreed with Elena Kagan second most (percentage wise);
  • Although Roberts agreed the most with Kennedy, Kennedy’s greatest degree of agreement was with Elena Kagan;
  • Justice Clarence Thomas actually sided more often with Justice Sonia Sotomayor than did Justice Alito side with Sotomayor;
  • It appears that however Alito comes out on most non-unanimous decisions, Sotomayor takes the opposite side;
  • Sotomayor and Thomas were together in the dissent in 5 cases this past term;
  • As being the sole dissenter in a case, Thomas beat Sotomayor 5-2;
  • There were six unsigned one-line decisions this term;
  • Five Circuit Courts of Appeal had at least five cases before the Court this term;
  • Of those five, the Ninth Circuit again led the way with the most cases and had the lowest success rate;
  • Of those five, the Second and Eighth Circuits prevailed the most often;
  • State courts (and those on direct appeal from Federal district courts located in states) had a dismal 28.6% success rate, and;
  • As predicted and per normal for the Left, they railed against the immigration challenge out of Texas, but hailed the affirmative action and abortion decisions out of Texas.

With respect to that last tidbit, the Left should count their lucky stars they got a 4-4 tie out of the immigration case since they will still get their day in court.  Of course, Obama could possibly be out of office by then.  Regardless, did they seriously think Scalia would have sided with them?  And Garland would likely have made no difference as he would not have been confirmed before the case was heard.

In conclusion, be it the nature of the cases, or the collegiality Roberts engenders, or Roberts’ propensity to forge consensus through narrow analysis, the dire predictions of the Left did not come to fruition.  Since they intend to use this as a wedge issue in November against Republican incumbent Senators, they should realize that overall, they- not conservatives- came out pretty well from this past term (they actually “won” four of the top 5 cases this term).

Most importantly, justice did not grind to a halt.