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Today, our hosts are taking a break from the news cycle to share some fun facts about the Supreme Court and answer a series of questions from their listener mailbox: Are Democratic-appointed Supreme Court justices more ideologically reliable than their Republican-appointed counterparts? What are some cases where you are inclined to agree with the legal reasoning but were bothered by the policy outcome? And perhaps most important, how should one go about hiring an attorney? Sarah and David have the scoop.
Show Notes:
-“Cleaning Up Quotations” by Jack Metzler in the Journal of Appellate Practice and Process.
-“ ‘(Cleaned Up)’ Parenthetical Arrives in the Supreme Court” by Eugene Volokh in Reason.
-“Larry Flynt’s Life in Contempt” by Ross Anderson in Los Angeles Magazine.
-“Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices” by Adam Feldman in SCOTUSBlog.
-Federal Tort Claims Act and Immigration and Nationality Act.
-Cases they mentioned: Keeton v. Hustler Magazine, Inc., Knick v. Township of Scott, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Our Lady of Guadalupe School v. Morrissey-Berru, Morse v. Frederick, Rucho v. Common Cause and Kelo v. City of New London.
Interesting discussion of the ideological "loyalty" of various appointees. I note that statistically, throwing out Souter for the analysis is kind of an "other than that Mrs. Lincoln . . ." move. The guy was a Republican appointee for a few decades voting against the conservative position in virtually every case, and thus was himself largely the origin of the conservative obsession with picking Justices that don't "flake out" and vetting them thoroughly. Similarly, the fact that AMK ended up in the "Bork seat" made it easy for activists to look at every ideologically dubious (in some minds) AMK decision, dream about WWRBHD (what would Robert Bork have done) and gnash teeth while mentally substituting a hypothetical Bork vote in every 5-4 AMK decision that sided with the Court's more liberal wing.
But Souter has provoked the night sweats on the right forever, not because he was "unreliable," (as some are accused of being) but because he was reliable -- reliably against the conservative legal philosophy broadly speaking. The fact that including him would so distort the analysis that he had to be removed kind of proves the point. As for the Souterless analysis I agree that Republicans conservatives aren't wildly more unreliable, but I also think it's a hard thing to judge because Supreme Court practitioners and Justices are really really smart. They know what Justices are immovable on certain issues and are more or less aggressive depending on where they think the majority is. Take the current court. Conservative litigants, seeing a broad 6-3 majority, are more likely to shoot for the moon and lose a Justice or 2 depending on the issue. More liberal litigants, on the other hand, are trying to pull an inside straight and may tailor a whole case towards one Justice (e.g., Bostick). And even this leaves out the effect of the not uncommon Rehnqusitian move of voting with a majority you probably disagree with on some level but writing the decision to limit the damage. I think the bottom line is that the number of confounding factors is too great on a small sample size for statistics to be much help, but regardless, you two are doing a great service by pointing out the nuance in these issues and challenging the assumption that many young lawyers get from partisan media on both sides that every issue is SO political that party affiliation of the nominating President is (or should be) determinative.
Regarding the analysis of bloc clustering on SCOTUS, it would have been interesting to look for cases decided by a 5-4 vote where the 4 are not all from the same bloc. Did any such case get mentioned?