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Bench Memos

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Closing Thoughts on the SCOTUS Term



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The final cases of the 2011 term have been handed down and the reviews are being published. Justice Thomas can now fire up his bus and head into “Real America,” many of his colleagues can dust off their passports to head off on their annual European tours, and Justice Kagan can breathe a sigh of relief as her first term is behind her. Here are a few of my own take-home points:

Justice Kagan may sit on the far right side of the bench, but her votes are solidly on the left. Those of you who watched her confirmation hearings may remember her explicit rejection of President Obama’s “empathy standard,” and her assertion that “it’s the law all the way down” when deciding cases. In fact, she went far enough out of her way to position herself as what we could loosely describe as an originalist that you would be forgiven if you had a hard time distinguishing her description of a judge’s role from that given by Chief Justice Roberts in his own confirmation hearings. 

In the end, Kagan was one of the least likely to vote with the Chief Justice (69 percent), and agreed most often with the other Obama nominee, Sonia Sotomayor (94 percent).* She also lined up regularly with Justices Breyer (88 percent) and Ginsburg (90 percent), placing herself well on the left of the bench. The two newest justices also agreed with Justice Ginsburg in every single 5–4 case decided this term. This is hardly surprising. But it should serve as a wake-up call to anyone who thought Kagan might tend to agree with the conservative justices simply because she was friendly to conservative law students as Harvard Law School dean or sat next to Miguel Estrada in class 1L year. President Obama knew what he wanted and then vetted and nominated accordingly. Future presidents should take note.

Another trend that shouldn’t surprise anyone who has been paying attention is that the Court hasn’t been a mindless tool of business interests. It has regularly issued opinions against parties that might be said to represent an amorphous “business” interest, including limiting FOIA exemptions for corporations, allowing a class action to proceed claiming that a drug company issued misleading information about side effects, allowing states to regulate car safety even more stringently than the federal government, and rejecting arguments by the Chamber of Commerce as “without basis in law, fact or logic.” 

I could cite many more cases that undermine the “SCOTUS loves business” meme the Obama administration kicked off when it declared war on Citizens United. Needless to say, the huge range of issues and litigants that come before the Court make it impossible to argue in more than the bluntest of terms that the Court is pro-business. But this term’s decisions undermine even those arguments for any who are interested at looking beyond the talking points of a single case.

Finally, Brown v. EMA, also known as the violent-video-games case, provided Court-watchers with yet another bullet point in the now-long list proving that Justice Scalia and Justice Thomas are not clones. Justice Scalia wrote for the majority, asserting pretty broad First Amendment protection for video games, while Justice Thomas dissented on the basis that the original meaning of “the freedom of speech” “does not include a right to speak to minors without going through the minors’ parents or guardians.” 

*Thanks to SCOTUSblog for producing the stats so quickly.



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