SCOTUS Finds Equilibrium After Vacancy Shake-up

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By Kimberly Strawbridge Robinson

The “ new center” that has emerged on the U.S. Supreme Court found sturdier ground during the recently concluded term.

Four justices were, once again, most often in the majority in the cases decided by the court during its 2016 term. Those included two justices nominated by Republican presidents and two nominated by Democrats.

But it’s not clear this balance will continue.

This term’s cases were both low in quantity and quality, Ilya Shapiro, editor-in-chief of the Cato Supreme Court Review, told Bloomberg BNA June 27.

That’s likely due to the 14-month vacancy left by Justice Antonin Scalia’s death, which was eventually filled when Justice Neil M. Gorsuch took the bench near the end of the term.

The lack of divisive issues led to exceptional unanimity among the justices.

The court, however, has already agreed to wrestle with some explosive issues next term, Shapiro said. In particular, on the last day of its 2016 term the court agreed to hear challenges to President Donald Trump’s controversial “travel ban.” It will also consider religious exemptions to anti-discrimination laws and the proper level of politics in redistricting.

Once Upon a Time

The court handed down 62 opinions in argued cases this term.

Once “upon a time, the Court took 150 cases a year,” an attorney arguing before the court this term noted.

That number, however, has been steadily declining. Now, the justices only consider around 70 argued cases each term.

This term, the court agreed to decide 67 cases. But the court didn’t reach a decision in five of those cases.

For example, the Supreme Court sent a transgender teen’s battle with his school district back to the lower courts after the Trump administration changed the federal government’s position on the use of school restrooms by transgender students.

This term’s 62 opinions were the lowest number in the past decade.

There hasn’t been “a lower total opinion output since the mid-1800’s,” Adam Feldman, creator of Empirical SCOTUS, said in a June 28 tweet.

More Than Words

The arguing attorney’s comment on the Supreme Court’s previous workload came in response to a concern expressed by Chief Justice John G. Roberts in Lightfoot v. Cendant Mortgage. The position advocated by the attorney could add 60,000 cases to the federal docket, Roberts said.

“Do you have an answer to that?” the Chief asked.

“Don’t tell us we’re not working hard enough,” Justice Anthony M. Kennedy joked as the courtroom erupted in laughter.

Those eight words, plus Kennedy’s follow-up quip about the difficulty of the earlier cases, were the only 12 words the justice spoke during that argument, Feldman told Bloomberg BNA June 27. That was the second fewest words uttered by a speaking justice during oral argument this term.

In fact, the fewest words spoken by a justice during oral argument—besides when a justice didn’t speak at all—came in the same case, according to Feldman. In Lightfoot, Justice Elena Kagan spoke only 10 words.

Rounding out the top five were Justice Samuel A. Alito Jr. with 20 words in Fry v. Napoleon Community Schools, Justice Ruth Bader Ginsburg with 28 words in Coventry Health Care of Mo. v. Nevils, and Alito again with 35 words in Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty.

Unsurprisingly, attorneys spoke the most during oral arguments, Feldman said. Jenner & Blocks’s Adam G. Unikowsky, took both first and second place in this category, speaking 4,675 words in Kokesh v. SEC, and 4,486 in Honeycutt v. United States.

Court watchers will not be surprised to learn that Justice Stephen G. Breyer took the top five spots of justices who spoke the most during oral argument. He topped out at 1,660 words in Hernandez v. Mesa.

Abysmal Records

Nearly half of the court’s docket came from just three places: state courts, the U.S. Court of Appeals for the Federal Circuit, and the Ninth Circuit. Twenty-eight of the court’s cases came from these courts.

Once again, those courts were among the most reversed by the Supreme Court this term.

And as is usual, the Supreme Court reversed or vacated more cases than it affirmed. This term the court reversed 46 cases and affirmed 16.

Like last term, state courts, the Federal Circuit, and the Ninth Circuit did abysmally, going 3-11, 1-6, and 1-6, respectively.

Agreeable Court

The relatively lean docket can be explained by the fact that the short-handed court turned away controversial issues in an effort to avoid evenly split decisions, Mark Chenoweth of the Washington Legal Foundation, told Bloomberg BNA June 27.

That lead to a pretty boring term, Adam Winkler of the University of California, Los Angeles School of Law, told Bloomberg BNA June 27.

But it also lead to a lot of agreement among the justices in these humdrum cases.

The justices were unanimous in 35 of their 62 decided cases. The remaining 27 had vote counts ranging from 8-1 in both BNSF Ry. Co. v. Tyrrell and Bristol-Myers v. Superior Court of Calif., San Francisco Cty., to 4-2 in Ziglar v. Abbasi.

“This term is one of two modern Court terms where the number of unanimous decisions was greater than the number of nonunanimous decisions,” Feldman said in a June 27 blog post.

New Center

In the non-unanimous cases, a “new center” of justices continued to gain steam in this term.

Kennedy is considered the court’s “swing justice,” often casting the deciding vote in high-profile, closely split decisions.

“But the court’s new center appears to include Justices Stephen G. Breyer and Elena Kagan as well,” Georgetown University law professor Martin S. Lederman told Bloomberg BNA following the court’s 2015 term.

Those three justices were the only justices in the majority more than 90 percent of the cases in which they participated in that term.

Closely behind them, though, was Roberts, with 89 percent that term.

Those four justices put up similar numbers this term. Kennedy was in the majority the most at 95 percent, followed by the Chief and Kagan at 92 percent, and Breyer at 89 percent.

That new center teamed up in 45 cases.

Fast Friends

Justice Clarence Thomas was once again in the minority more than any other justice this term. Still, he was in the majority 79 percent of the time.

Early indications suggest that he will have company in Gorsuch.

The two voted together in all 13 cases in which Gorsuch participated. In opinions relating to non-granted cases, the two also frequently joined each other’s opinions.

The two “criticized the court for leaving part of Trump’s travel ban on hold and said the majority was too quick to side with a lesbian couple,” Bloomberg’s Greg Stohr said.

Swift Justice

Coming to the bench at the end of the Supreme Court’s argument calendar, Gorsuch only participated in 13 of this term’s cases, and only wrote one decision. It was unanimous.

Though the average time from argument to decision this term was 93 days, Gorsuch got his first opinion out in just 56 days. That speed was likely attributable in part to the fact that the Supreme Court was scheduled to finish up its term just 71 days after that case was argued.

Among justices who sat on the bench the entire term, Justice Sonia Sotomayor was the fastest, getting her opinions out in 68 days on average.

The fast opinion of the term belongs to the Chief, however, who managed to get out his opinion in Dean v. United States in just 35 days.

Word!

One reason for Sotomayor’s speed may be that she wrote one of the term’s shortest opinions. At just 2,837 words, Sotomayor’s opinion in Samsung Elecs. Co. v. Apple Inc. is the fourth shortest opinion of the term, according to Feldman.

Two by Breyer and one each by Roberts and Thomas round out the five shortest, with opinions ranging from 2,358 words to 2,880. The shortest belongs to Robert’s speedy Dean decision.

On the other end of the scale, Kagan wrote two of the term’s longest opinions. Her opinion in Cooper v. Harris came in at 12,631 words. Other long writers included Ginsburg, Alito, and Roberts, ranging from 11,495 words to 8,500.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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