{"id":7980,"date":"2009-11-13T12:06:57","date_gmt":"2009-11-13T17:06:57","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=7980"},"modified":"2009-11-13T12:12:47","modified_gmt":"2009-11-13T17:12:47","slug":"do-the-justices-play-nicely-together","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/11\/do-the-justices-play-nicely-together\/","title":{"rendered":"Do the Justices Play Nicely Together?"},"content":{"rendered":"

\"SCOTUSFor the second\u00a0autumn in a row, the federal public defenders here in Milwaukee were kind enough to invite me to speak on the U.S. Supreme Court’s criminal docket, reviewing last term’s cases and previewing the new term.\u00a0 The event is a great opportunity for me to think about patterns and themes that cut across individual cases.\u00a0 I plan now to recapitulate some of my obervations in a series of short blog posts over the next couple weeks.\u00a0 This is the first.<\/p>\n

It is commonly thought that the Court is bitterly divided along ideological lines.\u00a0 In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is.\u00a0 The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to\u00a0the advocates or to their own colleagues.<\/p>\n

How well does the stereotype actually reflect reality?\u00a0 The answer depends on what type of criminal case you are talking about.\u00a0 <\/p>\n

The point is nicely illustrated by comparing two sets of cases from last term: the statutory interpretation cases and the investigation (that is, search, seizure, and interrogation) cases.\u00a0 As I have categorized the cases, there were six in each set.\u00a0 (The cases are listed at the end of this post.)<\/p>\n

The statutory interpretation cases do not look anything like the stereotype.\u00a0 In these cases, the Court was required to interpret either a substantive criminal\u00a0statute or a statute containing a mandatory minimum sentence.\u00a0 In these cases, the Court was remarkably cohesive.\u00a0 Three of the six\u00a0decisions were unanimous, while the other three were 7-2.\u00a0 That makes a grand total of six dissenting votes in six cases.\u00a0 Those six votes were cast by four different Justices from across the ideological spectrum.\u00a0 None of the conservative Justices voted for the government in all six cases, while none of the liberal Justices voted for the defendant all the time.\u00a0 Indeed, conservative Justices Scalia and Roberts voted for the defendant more often than not (four of six cases).<\/p>\n

The investigation cases conform much more closely to the stereotype.\u00a0 Four of the six cases were 5-4 decisions.\u00a0 In all, the six cases produced eighteen dissenting votes, or three times as many as the statutory interpretation cases.\u00a0 Moreover, the divisions generally (although not always) followed the stereotypical ideological pattern.\u00a0 In three of the four 5-4 decisions, the conservatives and liberals each voted as block, with Justice Kennedy casting the tie-breaking vote (siding sometimes with the conservatives and sometimes with the liberals).\u00a0 In the six investigation cases, the four conservative Justices collectively cast exactly one pro-defendant vote.\u00a0 Put differently, given twenty-four opportunites to vote for a defendant, the conservatives did so only once.\u00a0 (This compares with fourteen pro-defendant votes by conservative Justices in the statutory interpretation cases.)<\/p>\n

Although I haven’t attempted to quantify this, my impression is that the Justices’ rhetoric in the investigation cases was also considerably more heated.\u00a0 In particular, there seemed to be charges flying from both sides that the other side was not honestly and consistently adhering to the doctrine of stare decisis.\u00a0 <\/em>I did not observe similar attacks in any of the statutory interpretation cases.<\/p>\n

What accounts for the discrepancy between the two sets of cases?\u00a0 One possibility is the triumph of Justice Scalia’s preferred methodology in one area: that is, textualism in the statutory interpretation area.\u00a0 I’ll have more to say about the Court’s textualism in another post, but the key\u00a0point for now is this: the statutory interpretation cases play out as exercises in determining the meaning of particular words in particular statutory contexts.\u00a0 There is very little discussion of broader public policy considerations that would cut across specific statutes.\u00a0 As a result, there does not seem to be a lot at stake in the statutory interpretation cases, and there are\u00a0few obvious implications for the Justices’ commitments to their various competing visions\u00a0of the\u00a0criminal justice system.\u00a0 When cases are framed this way, it should not be surprising that the Justices find it relatively easy to reach common ground.<\/p>\n

By contrast, textualism provides little clear guidance in the investigation cases (what exactly makes a search “unreasonable”?) and plays little discernible role in the Justices’ reasoning.\u00a0 Indeed, what the investigation cases are really about is the scope of extratextual exclusionary rules, which do implicate core ideological commitments on both sides of the political aisle.\u00a0 To liberals, the exclusionary rules (closely associated with the Warren Court and the broader civil rights revolution of that era) represent an important symbolic commitment to individual libery and equal rights in the face of a criminal justice system that has all too often wielded its power in discriminatory ways.\u00a0 To conservatives, the exclusionary rules represent everything that was bad about the 1960’s: collective security sacrificed in the name of individual liberty, elites overriding the will of the “silent majority,” and so forth.\u00a0 The Justices write about the exclusionary rules in terms of costs and benefits, but in truth\u00a0the costs and benefits are unknown and probably unknowable.\u00a0 Given the lack of any objective measure, the cost-benefit balancing necessarily becomes ideological . . . and the Justices don’t play so nicely together.<\/p>\n

Statutory Interpretation Cases<\/span> — includes cases on substantive criminal and mandatory minimum statutes, but excludes cases on the habeas corpus statute and other procedural laws<\/p>\n