In recent years, the Supreme Court has not ruled favorably on access-to-the-courts issues important to consumer advocates. Think, for instance, of last year's class-action decisions in Wal-Mart v. Dukes and AT&T v. Concepcion. Neither decision interpreted the constitution (although Wal-Mart was, at least in part, driven by the majority's constitutional concerns), and so both, in theory, could be overruled by Congress. Nonetheless, the decisions in those two cases are indicative of a Supreme Court that, for quite a while now, has been closely divided in "big" cases. Concepcion was decided 5-4, as was one of the two issues in Wal-Mart (although on the other issue the plaintiff lost 9-zip).
With that in mind, check out this article by law professor Geoffrey Stone. Stone wanted to know what the effect might be if President Obama wins a second term and replaces a "conservative" justice (say, Justice Scalia) with a "liberal," or, on the other hand, if former Governor Romney wins and replaces a "liberal" justice (say, Justice Ginsburg) with a "conservative."
To figure it out, he asked several of his law professor colleagues to name the Court's most significant constitutional rulings since 2000. He came up with a list of 18 cases. The following excerpt summarizes Stone's findings:
[T]the eighteen cases are, in chronological order, United States v. Morrison (2000) Bush v. Gore (2000), Zelman v. Simmons-Harris (2002), Lockyer v. Andrade (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Hamdi v. Rumsfeld (2004), Roper v. Simmons (2005), McCreary County v. American Civil Liberties Union (2005), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), Gonzales v. Carhart (2007), Parents Involved in Community Schools v. Seattle School District No.1 (2007), Crawford v. Marion County Election Board (2008), Boumediene v. Bush, (2008), District of Columbia v. Heller (2008), Citizens United v. Federal Election Commission (2009), and National Federation of Independent Business v. Sebelius (2012).
How did the thirteen Justices who participated in these eighteen decisions vote? The moderate liberal Justices voted for the more liberal position ninety-seven percent of the time (seventy of seventy-two votes). The very conservative justices voted for the conservative position ninety-eight percent of the time (fifty-nine of sixty votes). This shows just how polarized the Justices are. The all-important swing Justices cast nineteen of their twenty-nine votes in line with the very conservative Justices. That is, they joined the very conservative Justices two-thirds of the time. The very conservative Justices were in the majority in nine of the cases and the moderate liberals were in the majority in nine of the cases.
With this information, and re-counting votes, we can reasonably infer that if Kagan had been on the Court since 2000 instead of Scalia, the moderate liberals would have won eight of the nine cases they lost and seventeen of the eighteen cases. On the other hand, if Alito had been on the Court instead of Ginsburg, the very conservative justices would have won seven of the nine cases they lost and sixteen of the eighteen cases.
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