As updated below in the Super StatPack, our annual summary memo of statistics from OT08 is available here. We welcome any citation, republishing, or repurposing of these facts and figures. We ask that you acknowledge SCOTUSblog as the source.
Here (as one file) are all of our stats, charts, lists, and observations about the just-concluded Term and here are visual representations of the voting lineups in each decision. In addition to our regular inclusions, we have added an opinion tally, a chart of certiorari grants by conference, and a list of all OT08 cases with questions presented and results. Here is our summary memo, condensing the most interesting trends and data of this Term.
We welcome any citation, republishing, or repurposing of these facts and figures. We only ask that you acknowledge SCOTUSblog as the source. You can download any individual data set below:
A new StatPack of preliminary data from all released opinions is available here. We now also have a visual representation of the Justices’ voting lineups. Our finalized data, additional charts, and Term summary memo will be issued early next week.
A new StatPack analyzing the opinions released through June 8 is available for download here. This includes:
For all statistic reports from OT95 onward, please see our archives on SCOTUSWiki here.
*There are 16 merits cases outstanding. Melendez-Diaz v. Massachusetts (07-591) is the only remaining case from the November conference and Coeur Alaska (07-984/07-990) is the only remaining from the January conference.
*Justice Kennedy still has only three dissents, voting with the majority in 95% of all cases and 92% of divided cases. Of the 16 cases where the Court divided 5-4, Justice Kennedy has been in the majority in all but one: Arizona v. Gant (07-542).
*Chief Justice Roberts and Justices Stevens, Souter and Ginsburg have already exceeded their total numbers of OT07 dissenting votes. Last year, Justices Stevens and Ginsburg each dissented 17 times; they have so far 21 and 18, respectively. Justice Souter has 18 dissents this year and had 16 last year. With seven votes, Chief Justice Roberts dissented the least last term; this term, he has dissented 12 times. (As a point of comparision, in OT06, he dissented eight times and in OT05, he dissented seven.)
A new StatPack analyzing the opinions released through the April sitting is available for download here. This includes:
The chart of Questions Presented has been updated to include the most recent opinions, available here.
Some notable points:
*Only one case is outstanding from the November sitting–Melendez-Diaz v. Massachusetts (07-591). Three cases are outstanding from December–Haywood v. Drown (07-10374); Ashcroft, Former ATT’Y Gen. v. Iqbal (07-1015); and AT&T Corp. v. Hulteen (07-543). Three cases are also outstanding from January–Coeur Alaska (07-984/07-990); Montejo v. Louisiana (07-1529); and Boyle v. U.S. (07-1309).
*Justice Anthony M. Kennedy has only authored two opinions thus far–Bartlett v. Strickland (07-689) and Negusie v. Mukasey (07-499)–but has most frequently joined the opinion of the Court. He’s dissented in just three cases–Arizona v. Gant (07-542); Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615); and the per curiam summary ruling in Spears v. United States (08-5721).
*Justice John Paul Stevens is winning the contrarian award so far. He’s been in the majority least frequently–32 out of 48 opinions, or 66.7%–and has the highest rate of disagreement with other justices. He’s disagreed completely with Justice Antonin Scalia and Justice Clarence Thomas in 48% of cases and with Chief Justice John G. Roberts and Justice Samuel A. Alito in 46%. In comparison, at this point in OT07, Justice Stevens had disagreed with the conservative justices in 21%-36% of cases. Justice David H. Souter is close behind–he’s been in the majority in only one more case than Justice Stevens and has similarly high rates of disagreement with the conservative justices.
A new StatPack analyzing all cases decided through the March sitting is available for download here. This includes:
Additionally, the chart of Questions Presented has been updated to include the most recent opinions, available here.
With the February sitting concluded, the blog now revives its tradition of providing statistics on the Court’s docket and decisions. (All statistics compilations since OT95 can be found on SCOTUSWiki here.) This month’s mini “StatPack” includes the Opinion Authors by Sitting chart and the Circuit Scorecard and is available for download here. (Updated: The original document erroneously listed Justice Stevens as the author of Pleasant Grove v. Summum. Justice Alito authored the opinion, meaning that only Justice Scalia has not written a November opinion.)
30 cases have been decided of the 79 consolidated cases scheduled for argument. The next StatPack will compare this term’s docket to OT07, but one immediate standout from the Circuit Scorecard is the continued presence of the 9th Circuit, taking up 20.3% of the docket with 16 cases; last year, 10 of 71 cases, or 14%, came from the 9th Circuit.
Also notable is that all of the October sitting arguments have been decided except for Arizona v. Gant (07-542), on the scope of the Fourth Amendment in car searches. All of the Justices have written at least one opinion from October, with the Chief Justice and Justices Souter and Ginsburg writing two each. The only outstanding cases from the November sitting are FCC v. Fox Television Stations (07-582), on “fleeting expletives,” and Melendez-Diaz v. Massachusetts (07-591), on a defendant’s right to cross-examine forensic analysis. Justice Scalia has not yet written an opinion from the November sitting; Justices Stevens, Thomas, and Breyer have each written two from November.
The next StatPack will include a Justice Agreement chart and a cert grant trend chart. Please e-mail kmoore [at] akingump [dot] com with comments on what other analysis would be helpful.
Analysis
Taking on a task newly assigned to it by the Supreme Court, the D.C. Circuit Court in the next few weeks will be faced with answering a constitutional question of historic dimensions: what part of the Constitution extends to Guantanamo Bay, and to the foreign nationals held prisoner there? This is a crucial test of what the Supreme Court meant in its June 12 ruling in Boumediene v. Bush.
Here is how that inquiry is likely to proceed: on about Jan. 9 (unless the Court shortens the time), the Justices will formally put into effect the order they issued on Monday to the Circuit Court to look again at the Boumediene ruling. The specific task will be to apply that ruling to the claims of four Britons that they were tortured and suffered religious discrimination at Guantanamo when they were there.
The first step by the Circuit Court is likely to be a call for new written briefs on that issue, on a timetable that may run at least into February. The Circuit Court may then hold a hearing on it, before beginning deliberating on a decision.
This timetable has a special significance because it means that the new review will take place after Barack Obama has become President, and it will be his Justice Department that will file the government’s views in the case. Whether the new administration will abandon the Bush Administration restrictive view on the rights of Guatanamo detainees is ucnertain at this point, but it seems a fair prospect.
The Britons lost their case in the D.C. Circuit last Jan. 11, They appealed that rulng to the Supreme Court (Rasul, et al., v. Myers, et al., 08-235). They asked the Supreme Court to take on the case itself, and apply its Boumediene decision to it. As an alternative, they suggested that the Justices return the case to the Circuit Court for another look under Boumediene. The Justices took the second option.
Analysis
Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch. Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.
The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?
Kennedy initially saw a potential problem if the Court were to answer yes to that question. He foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency. He faulted the two lawyers arguing against confrontation for lacking a rationale that would keep the prosecution’s use of unexamined lab reports in check.
He also appeared to be on both sides of the issue of whether crime lab reports were the reliable results of objective science based on standardized protocols, or were prosecutorial documents drawn up explicitly to serve as criminal evidence against the accused. In the end, though, he seemed to be suggesting that, as a constitutional matter, there had to be some limits. For example, he objected with some fervor to the suggestion, made by the federal government’s lawyer, that if it was machine-generated, it should routinely come into evidence without more. “There are all sorts of machines,” he said. “Just because a machine was involved…you can’t make a sensible exception [to confrontation] on that basis.”
[Corrected at 11:48]
There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.
It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. There is no indication that he lost a majority from March. His only dissent from the sitting is for two Justices in Indiana v. Edwards. So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.
Backing up to February, there are two remaining cases (both argued, like the guns case, by Walter Dellinger): Morgan-Stanley (an energy regulation case) and Exxon (the maritime punitive damages case). Six Justices haven’t written from the sitting, making predictions very dicey. The best guess is that Chief Justice Roberts and Justice Stevens are writing. Justices Scalia, Souter, and Kennedy are unlikely because they had already written twice in a sitting before February. Justice Ginsburg wrote twice in later sittings.
For April, there are four opinions remaining: Plains Commerce (involving Indian tribes), Kennedy (death penalty for child rape), Davis v. FEC (campaign finance), and Giles (a Confrontation Clause case). Justices Scalia, Kennedy, and Alito have not written and therefore almost certainly have three of the opinions. The most likely author for the remaining decision is Justice Souter (who needs another opinion to take him to seven for the Term).
With the exception of Heller, these predictions have no genuine value. They are just informed guesses and none says anything about the outcome of the cases.
A new StatPack is available here.
As the StatPack indicates, there are now ten cases to be decided before the Court recesses for the summer, including three of the highest profile cases of the year – DC v. Heller (Second Amendment), Kennedy v. Louisiana (death penalty for child rape) and Exxon v. Baker (punitive damages over Exxon Valdez oil spill). We wanted to give those readers awaiting these decisions a quick primer on what to expect over the next week.
The timing of opinions. There is only one decision day next week on the Court’s official calendar: Monday, June 23, when the Court’s public session will begin at 10 am eastern. However, as the Court has done for the past two weeks, it’s certain that the Court will sit on one or more additional days later in the week. Based on past practice, if the Court holds one additional opinion day, it will likely be the Thursday (June 26) as it did last Term. If it holds two additional opinion days (which is more likely, given that ten opinions remain), the added days will likely be Wednesday (June 25) and Thursday (as it did in the 2005 Term).
(Of course, the Court isn’t required to finish by June 26, but it has concluded the Term before July every year for the last decade. Monday June 30 is also a possible last day, but is unlikely because the Court internally plans on finishing each Term during the fourth week of June.)
After the jump, I discuss the basics of how we predict which Justices will author which opinions and our current sense on that issue.
A new StatPack is available for download here. In addition to our usual array of statistics, we’ve also included in this edition a list of the 22 cases that have yet to be decided along with a brief summary of the issues involved in each, ordered by length of time the cases have been outstanding.
Yesterday, the Court announced that it has added a public session for this Thursday, June 12, in order to issue additional opinions. We will once again have “LiveBlog” coverage of that session beginning at 10 am eastern on Thursday.
The newest edition of The Supreme Court Compendium: Data, Decisions & Developments, by Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker, has just been released, and there’s a wealth of interesting historical information to be found in its pages. With the Court in between argument sessions and the opening of the baseball season (and its attendant statistical obsession) upon us, we thought we’d play a little Supreme Court baseball and use the Compendium’s data and other sources to put a few of our recent StatPack figures into historical perspective. This post will examine historical trends in the number of signed opinions, while later in this series, we’ll examine 5-4 votes, total numbers of concurrences and dissents, and then put a few Supreme Court “records” into perspective.
As we note in the latest StatPack, the Court is on track to hear 70 arguments this Term, and from those – because of various dismissals and equally divided affirmances with no signed opinion – the Court will release a maximum of 67 signed opinions before the Court adjourns for its Summer Recess. Thus, if there are no additional dismissals or per curiam opinions after argument, that number would match last year’s low number of signed opinions; the new edition of the Compendium allows us to more precisely put this output in historical context.
As can be seen from this graph (compiled using data culled from the Compendium’s Table 2-8 and our own data), if the Court ends the Term with 67 signed opinions, it will tie OT06 for the second-lowest output of signed opinions since the Court took meaningful control of its own docket following the enactment of the Judicial Act of 1925. With this Term in the number two spot, the historical low of the certiorari era occurred in the 1953 Term, which saw 65 signed opinions.
With four decisions outstanding from the October to December sittings, we can begin our annual, oft-misguided attempt to divine which Justices are writing which opinions. You can see the outstanding decisions and distribution of authorship in our opinion authors chart here or the SCOTUSwiki case index here.
October: The only outstanding decision is Santos, which involves money laundering. Neither Breyer nor Alito have written for that sitting. One of them did not receive an opinion assignment because, while there originally were nine argued cases, Tom F. (an IDEA case) was decided by an equally divided Court and never assigned to be authored. According to a loose tradition, Alito would have been left without an opinion as the most junior Justice. So, Breyer would have Santos.
November: The outstanding decisions are Williams, involving child pornography, and Davis, involving bonds and the Commerce Clause. Alito and Scalia have not written from that sitting. But the two cases are not necessarily divided between the two of them: yet another case, Klein & Co., was argued but dismissed over a month later. So either Alito or Scalia could have had Klein & Co., meaning that another Justice could have either Williams or Davis.
Scalia is an unlikely author of Williams. His views on child pornography are less protective of the First Amendment than a majority of the Court would likely be willing to endorse.
Neither Scalia nor Alito is a particularly likely author of Davis. Scalia has unique views of the dormant Commerce Clause that make him unlikely as an author of a majority opinion. Alito seemed to favor the individual taxpayers/respondents in the case, who I assume are going to lose.
A process of elimination leaves the Williams case to Alito (meaning that the federal law would be upheld) and the scuttled opinion in Klein & Co. to Scalia. To divine the likely author of the third case, Davis, you have to turn to December.
A new edition of this Term’s StatPack is here. Note that we have not included a case list in this download, but the SCOTUSwiki case indices have been updated to reflect the latest opinions and grants; OT07 is here, and OT08 is here.
One additional item of curiosity this week: on Monday, the Court granted cert. in Pearson v. Callahan, which included the following directive: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Court’s decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?’” One reader emailed us to ask an interesting question: when was the last time the Court sua sponte (i.e. on its own) ordered the parties to address specifically whether it should overrule one of its precedents?
Based on our searches of various databases, the last time this happened (and the only time in recent history) was 1991 in a case called Payne v. Tennessee. In an order reported at 498 U.S. 1080, the Court amended its grant of a few days earlier to add a question about overruling two of its then-recent capital case precedents, Booth v. Maryland and South Carolina v. Gathers. In its ultimate opinion, the Court did indeed overrule those two 5-4 decisions by a vote of 6-3, leading Justice Marshall to write a dissent noting that “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”
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