Links

Columnists



Site Search


Entire (RSS)
Comments (RSS)

Archive Calendar

October 2020
S M T W T F S
 123
45678910
11121314151617
18192021222324
25262728293031

Guides

How to Become a Bounty Hunter



Tag: ginsburg

Parker: The Effect of Donald Trump’s Supreme Court Picks on Criminal Law Cases

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

supreme_court_us_2010

By Ross Parker
ticklethewire.com

One out of five voters said that the Supreme Court was the most important issue of the Presidential campaign. They voted overwhelmingly for Donald Trump. The President-elect has published two lists of about 20 possibilities for his Supreme Court appointees.

“Appointees” plural since there is one vacancy and three of the eight Justices are over or near 80 years old. Two are considered in the “liberal” wing (Ginsburg, Breyer) and one is a swing vote who sometimes votes with that group (Kennedy).

Since the pool of Trump picks are characterized as “conservative” or “libertarian,” the speculation by the pundits is that the effect of the appointments will be immediate and a strong re-direction to the right. Not that many of us put much faith in the predictions of the pundits and pollsters after the election. But in this case they are probably right. At least as to the hot-button issues like abortion, immigration, climate change, LGBTQ, gun rights, and affirmative action.

But what about cases involving criminal and law enforcement issues? This requires an assessment of how the current 8 Justices on these cases have voted.

In the 2015-2016 term, the Court handed down opinions in 28 cases involving these issues out of 81total cases. Categorizing each Justice’s vote as Pro-Government or Pro-Defendant results in the following order, from highest percentage of Pro-Government votes to the lowest:

Alito————79%

Thomas——–61%

Kennedy——-61%

Breyer———-57%

Roberts——–57%

Kagan———-54%

Ginsburg——50%

Sotomayor—-36%

Another interesting survey counted the percentage of time that each Justice voted with the majority in criminal cases, as opposed to voting with the dissent, or filing a concurrence with an entirely different rationale than the majority. That list from highest adherence to the majority to the lowest was as follows:

Kennedy——-96%

Roberts——–93%

Kagan———-89%

Ginsburg——86%

Breyer———86%

Alito———–71%

Sotomayor—71%

Thomas——-54%

Before the analyses, the caveats. These 28 cases were from a single term, not the entire history of a Justice’s votes. Some involved just following the Justice’s interpretation of precedent, as opposed to how he or she would have voted if not bound by precedent. Some of the cases were very complex, and there was some subjectivity in a few cases in deciding which box to put each of the votes in. But there is something to be learned from the exercise even with these limitations.

Ross Parker

Ross Parker

Looking at the Pro-Government listing, the two Justices at the top (Alito and Thomas) are considered to be the most “conservative” on the bench. The two on the bottom are considered to be in the “liberal” wing. But the four in the middle do not follow these labels. The list proceeds: swing vote (Kennedy), liberal (Breyer), conservative (Roberts), liberal (Kagan). Thus in criminal cases at least, the label does not determine the voting pattern for most Justices.

This conclusion is made even more apparent by a look at individual criminal cases even at the top and bottom of this ranking. For example Justice Thomas, rightly considered the dissenter on the bench, either dissented or concurred in the defendant’s favor in six cases, about a quarter of the criminal docket. This may well be because of his libertarian views on cases like those involving Second Amendment right to bear arms or the federal Hobbs Act, which he may perceive to invade states rights. On the other end of the list, Justices Sotomayor and Ginsburg each dissented in favor of the Government in two cases.

On a great many cases, it was difficult to predict how a Justice would vote on criminal cases. Voting groups on each side sometimes involved surprising voting buddies. On the great majority of cases, reading the opinions left the conclusion that the Justices more often voted their views on the applicable law rather than a particular ideology.

Read more »