End of Term Observations

The end of the Supreme Court’s term provides an opportunity to assess what we’ve learned about the Court.  In addition to my comments on whether the Roberts Court is fairly characterized as “pro-business”, I’d offer these additional observations:

  1. The Roberts Court is still, in many respects, the Kennedy Court.  As statistics compiled by SCOTUSBlog reveal Justice Kennedy was in the majority more than any other justice (94 percent). When the Court divides along ideological lines, Justice Kennedy is invariably in the middle and controls the outcome.  Justice Kennedy was on the losing end in only two of the Court’s sixteen 5-4 decisions this past term.

  2. Like Justice Kennedy, the Roberts Court is a very speech protective court.   This, more than any fealty to corporate interests, explains the outcome in Citizens United, just as it explains this terms decisions striking down provisions of Arizona’s campaign finance laws, restrictions on the sale of violent video games to minors, and sanctions against offensive protests at military funerals.

  3. Although the media likes to play up the ideological divisions on the Court, the justices are not all that divided.  Only 20 percent of the Court’s decisions were 5-4, which is slightly below the average of the past ten years.

  4. Although many assume Justices Thomas and Scalia vote together more than any other justice, that was not the case this year — it was not even close.  As I noted at the VC, the two pairs most likely to vote together were Justices Kagan and Sotomayor (94%), and Chief Justice Roberts and Justice Alito (96%).  The Thomas-Scalia pairing did not even crack the top ten.

  5. As expected, both Justices Sotomayor and Kagan are reliable liberal votes in the vast majority of cases.  Although each occasionally diverged from type in ideologically split decisions, it was the exception more than the rule.

  6. Justice Breyer increasingly appears to be the most results-oriented justice.  His opinions tend to stress practical policy considerations and where he splits from the other liberal justices, it appears he is seeking to avoid policy outcomes he does not like.  Exhibit A is the violent video games case, in which he was one of only two justices who voted to uphold California’s law limiting the sale of such games to minors.

Jonathan H. Adler — Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of ...

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