Comments on: “Ask the Author” with David Stras: Part 1 http://www.scotusblog.com/wp/ask-the-author-with-david-stras-part-1/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: David Stras http://www.scotusblog.com/wp/ask-the-author-with-david-stras-part-1/comment-page-1/#comment-10817 David Stras Wed, 27 Dec 2006 16:13:03 +0000 http://www.scotusblog.com/wp/uncategorized/ask-the-author-with-david-stras-part-1/#comment-10817 I would first like to thank Roger for his excellent questions and comments during this series. Dennis' question is also a good one, but not one in which I have much data. Several studies have noted that the Court more often takes cases to reverse than it does to affirm. Cases coming from the Ninth Circuit are a great example: in many Terms the reversal rate for Ninth Circuit cases reaching the Court is 90% or more. Although I have no firm data on this point, it stands to reason that the four or more Justices who voted to grant certiorari in a case are more likely to vote to reverse than to affirm. This conclusion flows from the general data mentioned above in addition to my intuition that Justices who vote to grant certiorari are more likely to object to the reasoning or holding of the lower court opinion, but further study is needed. I do believe, however, that Dennis' question merits further investigation once I have finished collecting docket sheets from the 1980s and 1990s. I would first like to thank Roger for his excellent questions and comments during this series. Dennis’ question is also a good one, but not one in which I have much data. Several studies have noted that the Court more often takes cases to reverse than it does to affirm. Cases coming from the Ninth Circuit are a great example: in many Terms the reversal rate for Ninth Circuit cases reaching the Court is 90% or more. Although I have no firm data on this point, it stands to reason that the four or more Justices who voted to grant certiorari in a case are more likely to vote to reverse than to affirm. This conclusion flows from the general data mentioned above in addition to my intuition that Justices who vote to grant certiorari are more likely to object to the reasoning or holding of the lower court opinion, but further study is needed. I do believe, however, that Dennis’ question merits further investigation once I have finished collecting docket sheets from the 1980s and 1990s.

]]> By: Dennis Bedard http://www.scotusblog.com/wp/ask-the-author-with-david-stras-part-1/comment-page-1/#comment-10816 Dennis Bedard Wed, 27 Dec 2006 02:05:05 +0000 http://www.scotusblog.com/wp/uncategorized/ask-the-author-with-david-stras-part-1/#comment-10816 Is there any relationship between a justice voting to grant cert and then, if cert if granted, voting to overturn the decision? In other words, what is the correlation between granting cert and reversing the decision upon which cert was granted? Is there any relationship between a justice voting to grant cert and then, if cert if granted, voting to overturn the decision? In other words, what is the correlation between granting cert and reversing the decision upon which cert was granted?

]]> By: r.friedman http://www.scotusblog.com/wp/ask-the-author-with-david-stras-part-1/comment-page-1/#comment-10815 r.friedman Fri, 22 Dec 2006 12:44:22 +0000 http://www.scotusblog.com/wp/uncategorized/ask-the-author-with-david-stras-part-1/#comment-10815 <p>Thanks to Prof. Stras both for the cogent analysis of his underlying paper and the listing of "reach out" cases. It was interesting to reread Goldman and Mechanik, it took me back to those days when the "Nixon court" failed to become the rampant conservative court that people expected solely because of the unfitness of Chief Justice Burger. It was also interesting to see Stevens in the midwestern patriot style he hasn't shown much of since the flag burning cases.</p> <p>I think these two cases are good examples of reach-out by the bare conservative majority to quash libertarian strands of caselaw. Goldman was 5-4, Mechanik 5-3-1. Both were Rehnquist decisions in his spare ipse dixit style (q.v. Whren). Both decisions were criticized by O'Connor for want of standards (I suspect that if the true history becomes known, it will reveal that Burger:Blackmun::Rehnquist:O'Connor but not as extreme). It was this authoritarian streak, in contrast to the individual liberties approach of the Warren court era, that characterized the legal politics of the Nixon court (and which both Roberts and Alito have said many times over they were attracted to). </p> <p>I had originally expected this comment to end up a practice pointer, in that about 10% of the docket constitutes reach-out cases, so as to constitute a worthwhile target for cert petitions. But it appears that you have to have a feel for where the majority wants to take doctrine and have an appropriate vehicle for doing so. This is an awfully fine calculation to throw a bunch of money after (especially when congressmen are so much cheaper). But in the current environment, it should certainly embolden Paul Clement.</p> <p>Roger Friedman</p> Thanks to Prof. Stras both for the cogent analysis of his underlying paper and the listing of “reach out” cases. It was interesting to reread Goldman and Mechanik, it took me back to those days when the “Nixon court” failed to become the rampant conservative court that people expected solely because of the unfitness of Chief Justice Burger. It was also interesting to see Stevens in the midwestern patriot style he hasn’t shown much of since the flag burning cases.

I think these two cases are good examples of reach-out by the bare conservative majority to quash libertarian strands of caselaw. Goldman was 5-4, Mechanik 5-3-1. Both were Rehnquist decisions in his spare ipse dixit style (q.v. Whren). Both decisions were criticized by O’Connor for want of standards (I suspect that if the true history becomes known, it will reveal that Burger:Blackmun::Rehnquist:O’Connor but not as extreme). It was this authoritarian streak, in contrast to the individual liberties approach of the Warren court era, that characterized the legal politics of the Nixon court (and which both Roberts and Alito have said many times over they were attracted to).

I had originally expected this comment to end up a practice pointer, in that about 10% of the docket constitutes reach-out cases, so as to constitute a worthwhile target for cert petitions. But it appears that you have to have a feel for where the majority wants to take doctrine and have an appropriate vehicle for doing so. This is an awfully fine calculation to throw a bunch of money after (especially when congressmen are so much cheaper). But in the current environment, it should certainly embolden Paul Clement.

Roger Friedman

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