Supreme Court

20 Opinion Line-Ups and Counting

The Supreme Court justices divide among themselves in many different ways.

|The Volokh Conspiracy |

Today the Supreme Court decided two cases 5-4 along traditional right-left lines.

In Abbott v. Perez, the Court largely rejected a district court's conclusion that Texas had engaged in unlawful racial gerrymandering.

In Ohio v. American Express, the Court rejected a claim that American Express had violated antitrust law and held that courts must consider both sides of two-sided markets when evaluating antitrust claims under the rule of reason.

Although both of these cases involved fairly traditional line-ups, we've seen quite a few different constellations in decisions this term, some of which I've noted in prior posts.

According to Kim Robinson, there have been 20 different opinion lineups this term.

Stay tuned, as the Court has four more decisions to release this term, including the "travel ban" case.

NEXT: Everyone Has an Opinion About Whether Restaurants Should Serve Trump Staffers: Reason Roundup

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  1. The focus on varied lineups is a favorite theme among Republican-leaning advocates, like Adler. It obfuscates the issue of partisan bias on the Court. But few observers doubt the partisan bias, or fall for the obfuscation. Why? It’s plain that a lot of cases have little partisan valance, and collect varied lineups?while a minority of cases have high partisan valence, and attract partisan lineups. Everyone can see that.

    Want a test, to suggest accurately which courts have been afflicted with partisan bias? Just check the class of cases which affect politics directly?political financing, voting rights, gerrymandering, racial bias in election law, and election procedure.

    Two measures are of interest. First, of course, partisan lineups in deciding cases of that sort. But even more interesting, how many cases of that class have different courts over the years chosen to put on the docket. I suggest a close look at that second measure would show the Roberts Court to have excelled all others in creating opportunities to intervene directly in the political process?and with a systematic pro-Republican tilt in the results.

    Do the test, and you might conclude on the basis of convincing evidence that the current court is the most partisan in history. Note that, of course, the partisanship on the present court is a both-parties phenomenon. But note also, the majority controls the initiative.

    1. One problem with your analysis is that the results you describe could be equally explained in theory by a partisan leftist minority and a totally neutral unbiased majority, or the converse, not just a both parties phenomenon. Admittedly, common sense may suggest that it’s both because “judges are as honest as other men, and not more so.”

      Ultimately, I feel that all of these sorts of academic analyses, that attempt to describe politics without touching the merits with a 10 foot pole, are fairly meaningless. At the end of the day you’re going to have to engage on the merits of whether a decision is right or wrong or maybe whether reasonable minds could differ, otherwise you’re just running in circles.

    2. It’s plain that a lot of cases have little partisan valance, and collect varied lineups?while a minority of cases have high partisan valence, and attract partisan lineups. Everyone can see that.

      That’s not necessarily obvious to everyone. It’s worth pointing out that much of law doesn’t have a valence that aligns with partisan affiliation.

      Its also worth talking about how some questions produce other identifiable divides. Line-up counting can be part of a process of trying to suss out what other valences exist. And it can also be part of analyzing how the Court reflects these valences as compared to past iterations of the Court or as compared to lower courts. So, for instance, one can note a 9-0 reversal of the court of appeals and naively say “see, there is so much agreement in the law” or you can ask the more interesting question: “why could all nine justices agree on this, even as at least two circuit judges who appear to have felt bound by precedent reached the opposite conclusion?”

    3. Observing there have been many interesting lineups (some of which occurred on the most valance[d] [sic] of cases) is not a conspiracy.

      While there are methodologies that permit one to quantify a partisan effect, it’s obvious that isn’t the whole story. Correlation does not imply causation.

    4. Why would Republicans want to obfuscate regarding bias on the Court? The Democratic nominations have a 100% success rate as being left-wing partisans.The Republicans have nominated two left-wingers, a center, slightly leftist, and a weirdo (Roberts) in the past 45 years

  2. Lathrop – I guess you assume SCOTUS took the 70’s and 80’s off.

    1. AustinRoth, I suspect from your comment that you haven’t grasped my point. I’m not suggesting anyone try to measure partisanship among Supreme Court decisions on the basis of counting up tallies of all the decisions, according to whether Ds like them, or Rs like them. No doubt, Rs did not not like the Obamacare decision, and Ds did. It was a strongly polarizing decision politically, and predictably headed for a 5-4 split, although not predictably on either side. But it’s not one of the decisions I think best tells the tale, because it isn’t about politics per se, no matter how politically interested people were with regard to the result.

      I am talking about decisions like Citizens United, and like the Voting Rights Act decision?cases that relate directly to what happens in politics, that affect the rules for politics, how politics is conducted, and how elections come out. I suppose there must have been some cases like that in the 70s and 80s, but I doubt anywhere near as many as with the Roberts Court. I could be wrong. I’m a legal layman, and don’t have the know-how (or maybe access to the right software) to check this out myself. So I’m sort of challenging any curious lawyers to prove me wrong, or not.

      1. There is a real gap in the courts literature, in that the major databases just divide decisions along liberal/conservative lines. They don’t tell you the SCOPE of a decision. What has to happen is that a researcher has to grab a group of cases on a topic, say federalism, and then show that there are substantive changes coming out of them.

        Likewise, even small cases that do not have a big change in the way people do business (like Citizen’s United) such as U.S. v. Lopez, where a portion of the Gun Free School Zone Act was ruled unconstitutional because Congress does not have authority to regulate gun possession near a school under the Commerce Clause, can have an outsize effect in that it was the Court’s first shot across the bow back in 1995 that they will take federalism seriously again.

        So in short, no easy way to peel the onion.

        p.s. (Congress just re-authorized the GFSZA under a slightly different premise, that the gun must first cross a state line, which is a stupid and meaningless distinction in a national economy.)

        1. And then the feds made very, very sure not to charge anyone under it where it might generate a test case. It’s one of those laws that stays on the books only due to being left almost entirely unenforced. No telling what the Court would do if somebody did t up a test case but the DOJ doesn’t want to find out.

  3. There is a remedy for the partisan nature of the Court. If we could get rid of Ginsburg, Breyer, and Sotomayor, and replace them all with rational, sentient beings, a lot of the partisan divide would disappear.

    1. If you guys ever perfect a machine that mass-produces cranky, selfish, backward, intolerant, poorly educated, gun-fondling, economically inadequate, rural, downscale, easily frightened, southern white males — and the Republican Party can arrange to register these newly minted yahoos to vote — you might get your wish.

      1. You mean my wish to replace Ginsburg, Breyer and Sotomayor with rational, sentient beings? I certainly hope so.

  4. What is the average amount of lineups?

    Is this an unusual amount?

    1. Similarly, what is the maximum number of lineups (let’s just keep it simple with majorities and the full court participating, so no 4-3 decisions for now)

      1 way to have all 9 in the majority
      9 ways to have 8 in the majority
      17 ways to have 7 in the majority
      24 ways to have 6 in the majority
      30 ways to have 5 in the majority

      81 different ways, does that sound right?

      1. Ugh…factorials.

        Three red balls, two white balls…

        Dice…

      2. I think you are under-counting.

        1 way to have all 9 in the majority
        9 ways to have 8 in the majority
        36 ways to have 7 in the majority
        84 ways to have 6 in the majority
        126 ways to have 5 in the majority

        Total of 256 possible lineups for 9 person decision.

        1. Correct.

      3. I get:

        All 9 -> 1
        8:1 -> 9
        7:2 -> 36
        6:3 -> 84
        5:4 -> 126

        For a total of 256 combinations.

        1. You guys didn’t factor in abstentions.

      4. Oh… yep yep. I was adding, not multiplying.

  5. Remaining cases:
    Florida v. Georgia — no political underpinnings so the lineup will likely be mixed
    Janus — hugely political so will be 5-4 along traditional conservative/liberal split
    Trump — hugely political so will be 5-4 along traditional conservative/liberal split, with perhaps Roberts swinging over to the liberal side but I doubt it
    NIFLA — political because it involves abortion issue, but also involves free speech rights, so should be conservative/liberal split with maybe one or two defections from liberal side over to the conservative side

    1. phattyboombatty, when you say “political,” do you mean an outcome which will affect politics itself, as a matter of law, or, instead, an outcome on which different political tribes hope for different results? Do you see any of those cases as being in the former group? I would suggest Janus, but doubt the others.

      1. By “political” I mean that the case involves an issue that the political parties care about and generally splits opinions along Republican/Democrat or Conservative/Liberal grounds. For example, a case involving the validity of a law to increase the minimum wage would be “political” (the way I used it) because historically Democrats have favored higher minimum wages and Republicans have disfavored them.

        Conversely, if you asked the average person about the Florida vs. Georgia water dispute they wouldn’t know anything about it or care or have an opinion one way or the other.

        To answer your question, I think that Janus is the only opinion that affects politics itself, because it involves an attempt to starve the unions of funds that are used to support political candidates and political causes. NIFLA is a great example of a case that doesn’t affect politics at all, but divides people pretty cleanly by political party with respect to the desired result. I don’t think the Trump case is political in and of itself, because I do not see a result favoring one party over the other (in the long term). It wouldn’t surprise me at all if the Supreme Court sides with Trump, and then in a few years a Democrat president is relying on the opinion to support broad executive powers for himself/herself.

        .

    2. Trump will be 6-3, maybe 7-2 in favor of Trump.

  6. I’m a Trump supporter, but of course aliens are entitled to due process. I suspect Trump has been told that but popped off anyway. I don’t care for that about him, but no one on the ballot offered perfection. My guess is, intentionally or not, his popping off stakes out an opening bid, and he’ll negotiate from there. I do like his tendency to stake out extreme negotiating positions. If you demand the moon, you don’t get the moon, but you may get a libration point.

    1. Now this is some hard work!

      Trump is both being impulsive AND playing the Art of the Deal. This is both a forgivable bad political move, and a savvy tactic.
      Just ignore the whole ‘negotiating over Constitutional rights’ bit – just look a the other guys and you can rationalize anything!

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