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June 29 — The eight-member U.S. Supreme Court led to some odd vote breakdowns and shifting roles for the justices this term.
The high court's 2015 term was rocked Feb. 13 by the unexpected death of Justice Antonin Scalia.
Because Senate Republicans have vowed to keep Scalia's seat vacant until the next president can fill it (84 U.S.L.W. 1719, 5/19/16), these trends could continue into next term.
Overall, the Supreme Court handed down 67 decisions in argued cases this term, which began in October and ended in June.
As is typical, the court reversed or vacated more lower court decisions than it affirmed.
The court affirmed in 30 cases, reversed or vacated in 36, and dismissed one case for lack of standing, Wittman v. Personhuballah, 84 U.S.L.W. 4322, 2016 BL 163095 (U.S. May 23, 2016) (84 U.S.L.W. 1728, 5/26/16).
District courts were the only set of courts that went undefeated in cases that were argued before the high court this term.
The District Court for the Western District of Texas and the District Court for the District of Arizona were affirmed in two redistricting cases, Evenwel v. Abbott, 84 U.S.L.W. 4175, 2016 BL 105367 (U.S. April 4, 2016) (84 U.S.L.W. 1453, 4/7/16) and Harris v. Ariz. Indep. Redistricting Comm'n, 84 U.S.L.W. 4234, 2016 BL 125237 (U.S. April 20, 2016) (84 U.S.L.W. 1533, 4/21/16), respectively.
State courts fared the worst this term, by far, going 2-9.
Apart from the characteristic breakdown of affirmed versus reversed/vacated cases, the eight-member court led to some unusual breakdowns in vote counts.
For example, although Scalia participated in 12 of the court's 67 decisions, there were no 5–4 decisions this term.
A corresponding “phenomena this Term was the number of equally divided votes,” Feldman said.
This “Term had the most equally divided votes since 1984,” he wrote.
Finally, Scalia's absence, along with occasional recusals, led to a handful of seven-justice opinions.
Most notably, the court split 4-3 in the affirmative action case, Fisher v. Univ. of Tex. at Austin, 2016 BL 201460 (U.S. June 23, 2016) (see related story).
The precedential value of these cases is still up in the air, given that the court's opinion didn't garner a majority of the Supreme Court's nine seats.
The lineups of the justices on particular cases—not just the vote breakdowns—were unusual this term too.
There were 25 different lineups in the 33 decisions in argued cases this term that weren't either unanimous or decided by an evenly split court. The court doesn't reveal the lineups when the court divides evenly.
The incentive not to evenly divide “may be one of the forces that has led to unique voting coalitions between Justices” this term, Feldman wrote in a June 20 blog post.
The justices may have sought “out points of consensus that they have lacked in the past to overcome ideological differences and come to concrete decisions,” he said.
Feldman noted that some of the lineups this term had never occurred before.
The most common of those odd voting lineups was a 7–1 split with Justice Clarence Thomas as the lone dissenter. While this has happened in previous terms, it happened this term five times.
Thomas was a prolific writer this term, authoring 38 opinions in argued cases: 7 majority, 15 concurrences and 16 dissents.
That's twice as many as the next most prolific justices, Justices Ruth Bader Ginsberg and Samuel A. Alito Jr., who both wrote 17.
Thomas was far ahead of the field last term in terms of opinions authored too.
Of the approximately 70–80 separate opinions last term—including both argued and non-argued cases—Thomas himself wrote about 40 percent, Martin S. Lederman, of Georgetown University Law Center, Washington, told Bloomberg BNA June 29.
He put up similar numbers this term and court-watchers can expect that to continue in future terms, Lederman said.
That's because Thomas looks at every case in a new light, regardless of the court's previous precedent, Lederman said.
That leads him to different outcomes than his colleagues, he said.
But while Thomas didn't veer from his path, other justices saw their roles shift this term.
In particular, Justice Anthony M. Kennedy has long been thought of as the “swing justice,” casting the deciding vote in several high-profile, closely split decisions.
But the court's “new center” appears to include Justices Stephen G. Breyer and Elena Kagan as well, Lederman said.
These three justices were the only justices to be in the majority in more than 90 percent of the cases in which they participated this term.
The court's “center,” therefore, has shifted to the left. And along with it Kennedy has seemingly shifted too, Lederman said.
On the big social issues this term—particularly affirmative action and abortion—Kennedy came around to the liberal side of the issue, he said.
That could be a concession to reality, Lederman said. If that's the way the court is going, “what's the point of writing a decision that just going to be overruled soon?”
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Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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