There is a lot of discussion in the press and blogosphere today about the 5-4 decisions of the Supreme Court term just ended and whether the Court is tilting right. The following table is shamelessly pirated from SCOTUSblog's StatPack. For criminal and related cases I have highlighted the law enforcement wins in blue and the defense wins in green.
Spears is actually more of a 5-1-3, so its presence in the table is debatable.
| Number of cases (entirely 5-4 or 5-4 on a major issue) | 23 | |
| Five to Four Cases: Alignments | 5-4 Cases: | |
| Roberts, Scalia, Kennedy, Thomas, Alito | 11 | 14 Penn, Ashcroft, Bartlett, District Attorney's Office, FCC, Gross, Herring, Horne, Montejo |
| Ginsburg, Stevens, Souter, Breyer, Kennedy | 5 | Altria, Caperton, Corley, Haywood, Denedo |
| Ginsburg, Stevens, Souter, Breyer, Scalia | 2 | Spears, Cuomo |
| Ginsburg, Stevens, Souter, Scalia, Thomas | 2 | Arizona v. Gant, Melendez-Diaz |
| Ginsburg, Stevens, Souter, Breyer, Thomas | 1 | Atlantic Sounding |
| Ginsburg, Stevens, Breyer, Kennedy, Alito | 1 | Oregon v. Ice |
| Ginsburg, Souter, Kennedy, Scalia, Thomas | 1 | Vaden |
Spears is actually more of a 5-1-3, so its presence in the table is debatable.
Justice Kennedy's presence in the majority comes in at a little over 2/3 of the criminal and related 5-4 cases, about the same as for the term as a whole.
Is the Court tilting "conservative" in criminal law, as Adam Liptak writes in the NYT that it is generally? Well, if we make the usual simplistic assumption that "conservative" equals the law enforcement side, no. The defense actually won 6 of the 10, and if we exclude the dubious Spears case we still get 5-4 for the defense side. The four "liberals" plus Justice Kennedy account for three of the defense wins, all minor cases. The two more important defense wins, Gant and Melendez-Diaz, came from the coalition of three "liberals" (including Justice Souter) plus "arch conservatives" Justices Scalia and Thomas. What happens to this coalition when (as seems likely) Sonia Sotomayor succeeds Justice Souter? Lauren discussed this Monday with regard to the Melendez-Diaz case and next term's Briscoe case.
And then there is Oregon v. Ice. This case has not received much attention, but I think it is significant. See my day-of-decision post. The lineup completely defies conservative-liberal labeling. Justices Stevens and Ginsburg may have traveled far enough into Apprendi-land and don't see a need to go any further. Is Apprendi's rampage through the law of sentencing procedure nearing its end? These two joined with Justice Breyer, who never liked the whole business, and Justices Kennedy and Alito, to stop Apprendi's spread into consecutive sentencing. This coalition does not include Justice Souter, so it may pick up one more vote. (Seeing Chief Justice Roberts in the dissent was a surprise and a disappointment, though.) If the coalition is stable, we could be in for a period where the Apprendi-line precedents established so far will stand but no new forays will succeed.
Update: The original post was edited to reclassify Haywood as a crim-related case. It has to do with civil procedure and jurisdiction, but it was a prisoner suit against guards, so it counts.
Is the Court tilting "conservative" in criminal law, as Adam Liptak writes in the NYT that it is generally? Well, if we make the usual simplistic assumption that "conservative" equals the law enforcement side, no. The defense actually won 6 of the 10, and if we exclude the dubious Spears case we still get 5-4 for the defense side. The four "liberals" plus Justice Kennedy account for three of the defense wins, all minor cases. The two more important defense wins, Gant and Melendez-Diaz, came from the coalition of three "liberals" (including Justice Souter) plus "arch conservatives" Justices Scalia and Thomas. What happens to this coalition when (as seems likely) Sonia Sotomayor succeeds Justice Souter? Lauren discussed this Monday with regard to the Melendez-Diaz case and next term's Briscoe case.
And then there is Oregon v. Ice. This case has not received much attention, but I think it is significant. See my day-of-decision post. The lineup completely defies conservative-liberal labeling. Justices Stevens and Ginsburg may have traveled far enough into Apprendi-land and don't see a need to go any further. Is Apprendi's rampage through the law of sentencing procedure nearing its end? These two joined with Justice Breyer, who never liked the whole business, and Justices Kennedy and Alito, to stop Apprendi's spread into consecutive sentencing. This coalition does not include Justice Souter, so it may pick up one more vote. (Seeing Chief Justice Roberts in the dissent was a surprise and a disappointment, though.) If the coalition is stable, we could be in for a period where the Apprendi-line precedents established so far will stand but no new forays will succeed.
Update: The original post was edited to reclassify Haywood as a crim-related case. It has to do with civil procedure and jurisdiction, but it was a prisoner suit against guards, so it counts.
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