A fractious Supreme Court?

[melm00se]

As you may (or may not) know, I am working on my Masters in History and in my US Constitution class, the discussion went towards "Is the Supreme Court more fractious now than it was in the past?".

So I thought about it and pulled Supreme Court ruling data and focused on the distribution of Supreme Court decision votes (IE how many votes were 9-0 vs 5-4?) and what I found was interesting:

Since 1946, the number of decisions that the votes were 7-2, 8-1 or 9-0 made up almost 60% of the all decisions. The numbers peaked during the 90's (67%), were at their lowest during the 1950's (54%) and since 2010 have been right in the middle (60%).

The number of 5-4 decisions over the same time period were 19% with the highs in the 2000's (24%) and low in the 1960's (15%). The remainder were 6-4 decisions and/or odd ball rulings when the court was at less than full compliment (19% and 2% respectively).

Based on the high percentage of strong majority rulings, I am not sure that anyone, from a 50,000 foot view, can make the case that the Supreme Court is broken.

Thoughts?

[LAS14]

1. I saw an article in the NYT that showed a surprising spread in just...

... this last year. Lot's of decisions scattered all over the membership. I found it very reassuring. I even have hopes that Kavanaugh will surprise us now and again, in part to redeem his reputation. He already has voted unexpectedly a few times.

[PoliticAverse]

2. You should publish the term by term stats on a webpage. I've done cursory searches for such info...

but haven't found it in a convenient form.

[sl8]

4. Have you looked at SCOTUSBlog's statistics/Stat Packs?

https://www.scotusblog.com/statistics/

[PoliticAverse]

7. It doesn't seem to have the specifc stat we're discussing though, vote distribution...

(9-0,8-1,7-2,etc.) by percentage of cases decided.

[sl8]

9. Look at the presentation, "Strength of Majority"

https://www.scotusblog.com/2019/06/final-stat-pack-for-october-term-2018/

Click on the link for "Strength of Majority".

[PoliticAverse]

11. Ah. Thanks. Why isn't Ginsburg listed on the "Solo Dissents" chart ?

[sl8]

12. That's a good question. I don't know. n/t

[melm00se]

5. Source

http://supremecourtdatabase.org/data.php

I built a quick pivot table from this spreadsheet:
http://supremecourtdatabase.org/_brickFiles/2018_02/SCDB_2018_02_justiceCentered_Docket.xlsx.zip

it would be relatively easy to do it by term.

[ProudMNDemocrat]

3. I would say you are on to something, meimOOse......

With the 2 recent Trump appointees who are slanted towards the extreme right side of the scale, it makes the Supreme Court more predictable as to how they will decide on Marriage Equality, Roe v. Wade, Voting Rights, and other decisions that influence life in America.

Trump wants a Judiciary that prevents Justice for All. THAT should be obvious!

[zipplewrath]

6. A possible different approach

I don't think there is any doubt that alot of business in front of the court isn't going to be particularly "partisan", at least on the surface. It's a bit like the "votes with the president XX% of the time" claim. There are alot of votes that may not be all that unusual in any nature.

What might be interesting is if there was a way to categorize these decisions by 5-4 that over turned previous precedent. Or maybe 5-4 that established new precedent. It's one thing for 5-4 votes to continue to support previous decisions, especially ones that were 5-4 to begin with. But it's another for a 5-4 to overturn something decided 7-2 when it was established say 10 years ago or something.

Basically, and this may be hard to define, but it is a question of 5-4 to affirm precedent, or 5-4 to change it.

[melm00se]

8. here is a link

for a list Supreme Court decisions overruled by subsequent decisions published in 2014:

https://www.govinfo.gov/content/pkg/GPO-CONAN-2014/pdf/GPO-CONAN-2014-13.pdf

As to your particular suggestion: That would be a pretty in depth analysis due to the sheer number of cases that this would cover (because if you are going to publish something it can't just be data like in the link above, you have to go thru all 15,000+ 5-4 decisions)...oh to be a Ph.D. with a bunch of grad students to help read 15,000 decisions.

[zipplewrath]

10. Ouch

That'd be alot of cases. Talk about something that needs a "crowd sourcing" approach.
There might be a statistical way to do it where each year a statistical set of decisions are chosen at random. Of course that'd probably only get it down to 4000 cases.

[sl8]

13. Did you notice anything unusual about J Kennedy's record in his last term?

Firstly, kudos and thanks for sharing with us.

Secondly, and a bit of a tangent, did you notice anything unusual about J "swing vote" Kennedy's record in 5-4 decisions, in his last term? Hedidn't seem to be "swinging" very much.


This is from a post from last year . I think the OT17 figures were preliminary, and I haven't rechecked them recently.

Kennedy's voting record in 5-4 decisions, for the past 8 terms
From http://www.scotusblog.com/wp-content/uploads/2018/06/SB_5-4cases_20180625.pdf


Term    Conservative   Liberal   Other
     + Kennedy   +Kennedy

OT10    63%     25%    13%
OT11    33%     33%    33%
OT12    43%     26%    30%
OT13    40%     20%    40%
OT14    26%     42%   32%
OT15    25%     75%
OT16    29%     57%    14%
OT17    73%     0%    27%



*Conservative = Roberts, Scalia/Gorsuch, Thomas, Alito;
Liberal = Ginsburg, Breyer, Sotomayor, Kagan

[melm00se]

14. I'll be honest

I have not taken a granular look at the behavior of a single justice as I just have not had the time beyond what I have posted here.