June 30, 2004
The Court's Mushy Middle
OK, so yeah, I'm interested in the Supreme Court. It affects all our lives more than many of us realize, so, yes ... one more post on it!
With the end of the term we get all the statistical analyses of the Court's decisions for the year. One that usually gets a lot of attention is which Federal Circuits the Court affirms the most, and which they reverse the most (of course most cases are reversals, the Court wouldn't take them otherwise). This year the Circuit Court affirmed at the highest rate was the 4th Circuit (the Eastern court that is generally regarded as the most conservative in the country).
Another statistic that is often widely followed is which justices voted together the most often. Most of the pairs at the top of the list this year fit together in ways that you would likely expect given that the Court is often portrayed as a 5-4 "conservative"/"liberal" court with a split matching the votes in Bush v. Gore. However, I think it's pretty notable that O'Connor and Breyer voted together 70% of the time. By comparison, Scalia and Thomas voted together 73% of the time. More and more it's looking like Breyer is going to fill O'Connor's pivotal shoes. To a certain degree, he already does.
Posted by armand at June 30, 2004 02:22 PM
| Posted to Politics
If I'm not mistaken, in past years the Fourth Circuit has been as reversed (quantity and percentage) as the Ninth, which is usually bandied about as the source of a disproportionate number of this Court's reversals.
Just as the Ninth Circuit often serves as a sort of laboratory for the jurisprudential "left," in recent years the Fourth Circuit has served as a sort of laboratory for the jurisprudential "right." I don't have a citation, but I know the NY Times Magazine addressed this phenomenon in a cover story within the last couple of years.
As with all research and development, trial and error usually entails enduring a great deal of failure for the occasional success. There, but for the grace of the Court, go both the Ninth and the Fourth (although the Fourth's banner year did raise my eyebrows as well).
Yeah, I think the 4th usually is over-ruled more often than it was this year. But of course one of the problems involved in saying that such and such court is in-line with or out-of-line with the Supremes is that the Supremes typically only hear a few cases from each Circuit (except for th 9th which is vastly larger than the others). For example, this year the Supremes heard 4 cases from the 4th Circuit, and the 4th went 3-1.
If people are interested, the Federal Circuits that were over-ruled 100% of the time this year were the 2nd, 5th, 10th, and 11th, as well as the DC Circuit (supposedly the 2nd most important Court in the land), and the Federal Circuit. My general impression is that of those only the 2nd might be labeled "liberal". By comparison the 9th, generally viewed as further to the left than any other federal panel, was only reversed 76% of the time.
And of course what these numbers really show is highly debateable. At a very basic level one could question whether or not the opinions by the Supremes are always really the right decisions. If they're not, is it so bad for a court's reputation to be over-ruled? Beyond that there's the issue about whether the circuit judges are holding to current law, or predicting where today's Supreme Court would stand on an issue.