Note: This post was written in 2012 and reflects the Supreme Court reality at the time. Updated analysis is needed to determine if the stats below still hold.
It has been evident since 2000, after the Gore-Bush decision debacle, that the US Supreme Court is less a bastion of Constitutional Truth, and more a motley crew of partisans & ideologues, who were selected based on accidents of history regarding which justice died during whose administration, and who can and will put their ideology/party before any quest for Constitutional Truth.
Since then, with every 5–4 decision along ideological/party lines, the above impression of the Supreme Court only gets stronger.
Essentially, the US Supreme Court is useless. They decide most cases along conservative/liberal lines and justify already-arrived-upon opinions with complex legal terminology. As a result, they add no real value to questions of constitutionality. A Supreme Court decision is less a revelation of what the constitutionally-correct interpretation of an issue is, and more a confirmation of the decision everyone knew they would arrive at before they announced it, based simply on the party/ideology of the justices.
In effect, the laws/decisions that get upheld simply reflect the conservative/liberal mix of the Supreme Court at the time, and have little, if any, to do with any legal “truth” or constitutionality of the issue under consideration.
To be more accurate, for the truly divisive cases, it’s already known what the four judges on the left and the four judges on the right will decide, and there remains only one source of uncertainty: which way the ‘swing vote’ justice (currently Anthony Kennedy) will decide. This situation is making a travesty of democracy, since so many major decisions that affect the lives of 300 million people are de facto decided by only one person, the current swing vote justice.
I wanted to quantify the decision making process of the SC, to see if we can gather some statistics that back or refute our assumptions about the SC. Using data for all the SC decisions in 2011, we build the following table which shows the percent of the times each justice justice agrees with each other justice, on decisions with 6 or fewer concurring justices. In each row we see what percent of the time the various justices agreed with the justice shown at the beginning of that row.
Percent agreement between justices on decisions with 6 or fewer concurring
Some observations:
- From row 1, we see that Scalia and Thomas agree with Roberts 94% of the time in such cases, while Ginsburg agrees 12% of the time on such cases
- From row 2 we see that Scalia and Thomas agree 100% (!) with each other on such cases. You could replace Scalia on the bench with a cardboard cutout, and just always double Thomas’ vote, and there would be absolutely no difference in judicial outcomes of the Supreme Court in these cases.
- From row 4 we see that Alito and Ginsburg are diametrically opposed, since they agree on 0% (zero!) of such cases. You could replace both of them on the bench with cardboard cutouts, and just always add 1 vote for each side of an issue, and there would be absolutely no difference in judicial outcomes of the Supreme Court in these cases.
- Comparing rows 1–4 (conservative justices) versus rows 6–9 (liberal justices), we see that the right-leaning justices are quite monolithic, since they agree with each other between 88% and 100%, while the left-leaning justices are less monolithic, since their agreement varies between 56% and 81% of the time. This seems to show that the left-leaning justices don’t as easily fall prey to groupthink as the right-leaning justices do.
- As expected, Kennedy is the swing vote, agreeing 50% of the time with Ginsburg and 50% of the time with Alito, the two diametrically opposed justices. His agreement with the other justices ranges from 44% with Breyer to 62% with Roberts. So Kennedy is quite balanced, with a slight bias towards right-leaning justices.
Another way to analyze the 2011 Supreme Court data is to look at the percent of the time that a justice is in the majority of 5–4 decisions, which is what the next table shows
Percent presence in the majority in 5–4 decisions
Observations:
- We see that Kennedy is in the majority in most 5–4 decisions (75%), cementing his swing vote status
- He is followed by the four right-leaning justices (Roberts, Scalia, Thomas, Alito) all with 62% of being in the majority of 5–4 decisions. This is a remarkable consistency and is very illustrative of the monolithic voting and groupthink on the part of the right-leaning justices.
- The left-leaning justices are less successful, being in the majority of 5–4 decisions between 38% and 50% of the time.
Overall, the data from 2011 quantifies what we had already suspected, namely that SC justices vote mainly based on their ideology/party, and not based on the legality or constitutionality of the issue at hand. The fact that they are so monolithic in their voting (especially the right-leaning justices) proves this. Their record is there for all to see, and it is quite damning.
Apparently, I’m not the only one who is skeptical of the SC and the way in which they arrive at decisions. According to an article in the New York Times, “many Americans do not seem to expect the court to decide the case solely along constitutional lines. Just one in eight Americans said the justices decided cases based only on legal analysis”. Not surprisingly, the article also states that according to a new poll, just 44 percent of Americans approve of the job the Supreme Court is doing, which is a historical low.
It’s not clear what the best solution to this problem might be.
Referendums for the most contentious cases are a no-go for many reasons, but they would at least reflect the conservative/liberal mix of the population at the time of the issue at hand, and not the conservative/liberal mix of a court that was determined years ago, based on accidents of history regarding which party had the White House when past justices died or retired.
Perhaps more realistically, maybe we should have a fixed duration of tenure for Supreme Court justices. This way, they rotate out more frequently, and better reflect the political reality of the day. Having them be life-term judges was supposed to keep them “above the fray” and above politics, but in practice, they have turned out to be as much in the fray as everybody else. So, getting rid of the life term for Supreme Court justices should not have any practical effect on how non-partisan the decisions will be.
An alternate solution is to keep things as they are, but force decisions to be least 6–3. If something is 5–4, the result should be, legally, as if the Supreme Court refused to hear the case, i.e. the decision of the lower court is upheld. This new rule may get the justices to be less partisan and compromise more in order to reach the 6 votes needed. But, even if it doesn’t do that, it will at least remove the travesty that is the one-person-swing-vote.
Originally published at https://andrewoneverything.com. Original responses:
- HA responded: A couple of comments:
- In your comment about Scalia and Thomas, you had it backwards. There should be a cardboard cutout of Thomas and a doubling of Scalia’s vote. Thomas has never broken with Scalia’s vote. Moreso, Feb. 2011 marked a 5-year anniversary of Thomas’ silence from the bench– the man had not made a comment or asked a question from the bench in 5 years. If he’s uttered anything since I haven’t heard about it.
- Hey, wouldn’t it be funny if Roberts read your post before the SC decision June 28? :-) - Pat Powers responded: Chief Justice Roberts’ decision on the Constitutionality of the Affordable Care Act, while statistically insignificant, might just be an indicator that the conservative monolith is breaking up. Also, I don’t think it’s fair to describe the liberal justices as “monolithic” when their rate of agreement is only 50 to 80 percent, compared to the conservative rate of agreement of 88 to 100 percent. When your rate of agreement is only 50 percent you are WAAAAY away from being “monolithic.” They are not just less monolithic, they are NOT monolithic.
