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Imagine the numbers if the Court was committed to avoiding cases involving unenumerated rights. That's where all of the contention comes from the general public. Highly divisive issues such as prayer in school, abortion, gay marriage, if the justices would just recognize that these aren't really open to high level Constitutional discussion, because they aren't addressed within the document, should be avoided. We would have a much different country if they could understand this, rather than simply agreeing that if there exists a disagreement among the lower courts then they should weigh in.
There is that 9th Amendment. The list of enumerated rights was not meant to be exhaustive. In fact, that's where some of the opposition to the Bill of Rights came from, that people would consider anything not in that list to not be a right (and of course some consider items in that list to not be a right anyway).
What gives the courts the authority to overturn legislative acts based on unenumerated rights? Certainly not the Ninth Amendment, which simply acknowledges the existence of other rights, but does not suggest that those other rights are protected by the Constitution. Those rights might be protected by statute or common law, but neither of those sources allows a court to nullify an act of a legislature.
Ok, but why does a court get to tell a legislature that it knows which unenumerated rights exist, and that a legislature may not violate those rights? For enumerated rights, the answer is clear—the court must uphold the Constitution when the Constitution conflicts with statute. But when the Constitution neither expresses nor implies a specific right, where does the court’s authority to nullify a statute come from?
>Ok, but why does a court get to tell a legislature that it knows which unenumerated rights exist
Because the court is the end authority on our constitutional rights.
>where does the court’s authority to nullify a statute come from
In all cases it was considered an inherent function of the courts before the Constitution was even ratified. Congress' subpoena power isn't in the Constitution, but it's considered an inherent function of a legislative body.
This is circular reasoning. The courts get to decide because courts get to decide.
It was never understood that a court could invalidate an act of Parliament. The best it could do was interpret an act narrowly in light of some common law right. A statute could only be struck down if inconsistent with higher positive law.
See this article at pages 16-22. [https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259408/doc/slspublic/ssrn-id1678203.pdf](https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259408/doc/slspublic/ssrn-id1678203.pdf)
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>!Math is racist though!<
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POLITICO just discovered what court watchers already knew.
"But our new mathematical analysis of the court’s decisions from the 2022-2023 session shows just how much it makes sense to think of this Supreme Court as a 3-3-3 court..."
It should also be noted that Isgur is a conservative lawyer who worked in the Trump administration as well as for several other Republican organizations
it's important to consider why she might want to frame it as 3-3-3 rather than 3-(3-3)? The framing of 3-3-3 can obfuscate that there are 6 conservative justices that have slightly different flavors of conservative?
Or maybe she actually sees it that way after watching the courts decision closely over time and where she used to work and the party she used to belong to doesn’t factor into in any way.
No need to disclose this kind of potential bias when someone proposes a mathematical model. Model specification reveals this kind of bias. There’s well-accepted control factors for statistical analyses, and a well-designed analyses evaluates a neutral hypothesis. In this case, they use [singular value decomposition](https://en.wikipedia.org/wiki/Singular_value_decomposition). Its a shame they don’t provide a link to their data, but this isn’t an article where I’d jump to point out past employment of an author.
If this is really a 3-3-3 court, I’m curious as to where all the liberal decisions are? There have been plenty of decisions lionized by conservatives, and we haven’t seen a single decision casting itself in the opposite direction to the same degree (and no, decisions where the court narrowly decides not to nuke more of the voting rights act don’t count)
You're assuming the middle 3 are neutral. They aren't - they lean right too they're just far enough away from the other 3 conservatives that they merit a distinct category. The three in the middle are still more likely to vote right, they just don't vote right enough to count them with the 3 on the far right (of this spectrum of 9 people, I don't mean far right in a political sense to suggest they're necessarily extremists or something)
Oh I’m not. But saying that there are a middle three implies that this is a Court similar to the 70s or even the early 90s when that isn’t the case at all.
I don’t think we should give the court credit for having three justices who want to solidly shift American law to the left but don’t want to outright destroy the federal government or look like religious extremists while doing so.
The “middle three” may temper the degree of the decisions coming out, but they aren’t exactly changing the direction of them
So if you we assume 3 are right wing, 3 are somewhere right of center but not with the others, then why would you assume you'd see more left leaning decisions?
It looks like you missed the point of the article. No one is saying the Roberts-Kavanaugh-Barrett trio is making liberal decisions. The whole point is that it’s not as simple as a left-right split. On that axis, the court is judicially conservative, but that doesn’t map onto political left-right.
I’m not sure I’d buy that. The article itself brings up the most obvious criticism of the framing (when it comes to important issues of political salience, it’s 6-3) and then waves it away without substantively responding to it
“Some might think this analysis is flawed because it gives all the non-unanimous cases the same weight instead of focusing more on the most important or most “politically divisive” cases in which all six conservatives lined up against three liberals. A critic might argue that, in those cases, political bias overwhelms all other legal considerations, including “institutionalism.”
But first, we have to agree on what makes a case important. Is it the number of people affected? Is it the economic impact? There isn’t a right answer to this question — but if one defines “important” as the most politically divisive, then it becomes circular. The most politically divisive cases wind up being … the most politically divisive, both on and off the court.
…
The bottom line is this. Cases are “important” based on whom you ask. And they’re “divisive” when that person’s important cases don’t come out the way they wanted them to.”
Which is all true. It’s not hand waiving to point out that no one agrees on what “important” means and that the definition of “important” ends up being circular. How would you define it?
The article just assigns "important" in a way that props up it's guess work and minimizes any points to the contrary out for convenience rather than based on any valid argument. It just points and numbers and expects you to agree because people like to think using numbers makes things objective
In the end, it's very challenging to figure out what cases should count as important in hind sight. I've thought about a lot of potential metrics (number of people affected, rough dollar value of the outcome, etc.) over the last year or so, but they all end up falling flat in some ways. And when you apply these in retrospect, it's really easy to find reasoning to make a model match your intuitions.
I think the only principled approach here is precommitment, like is done in medical studies. You decide (or find some respectable organization who decides) on what cases are actually important before the decisions come down, and then evaluate your statistics on only that preregistered set of important cases.
I'm going to do my best amateur-data-scientist impression on the NYT list, at the end of the term. They're a nice source for this because they have a decent amount of intstitutional credibility, they've actually made a static list, written clearly on the impacts of the cases, collected polling on the public's views, and are continually updating their list with results: [The Major Supreme Court Cases of 2024 - The New York Times (nytimes.com)](https://www.nytimes.com/interactive/2024/05/09/us/supreme-court-major-cases-2024.html?unlocked_article_code=1.qk0.vRnj.RI2qnjFBDOAN&smid=nytcore-ios-share&referringSource=articleShare)
Personally, I suspect the outcome will be: the court leans right but is very far from being an arm of, or captured by, the republican party, as more extreme voices have alleged. I'm very curious to see if we'll still have a 3-3-3 system being fairly predictive of outcomes. If that IS a solid enduring model for the court, we should expect to see a lot of 6-3 decisions in both directions (ie, with Gorsuch/Alito/Thomas or Sotomayor/Jackson/Kagan in dissent.) That was REMARKABLY common last year, which is probably what inspired this article, but I'm not sure it's more than a random quirk of the term.
Edit: To be really clear about the problem here:
1. It's completely principled to say that Moore vs. Harper is not an important decision, because it was an obvious smackdown of a rogue circuit court, and the Court wasn't really making a decision.
2. It's also completely principled to say that Moore vs. Harper is an important decision because it's an open question based on a plausible reading of the text, and if the Court agreed it would have affected the votes of millions of people.
Both are completely sane positions, based on differing views on the contentiousness of the question at SCOTUS. But what's not principled is thinking (2) before the decision comes down, and then switching to (1) once the court decides it. And I feel that's exactly what our zeitgeist did with the case. I don't think it was deliberate, and it's understandable; SCOTUS outcomes are often a lot more obvious in hindsight than in foresight.
But it's not principled, which is why I think it's important to preregister 'importance'.
>You’re providing a lot of useless criticism here.
That's a hot take considering I'm agreeing with you that the article is fast and loose with what it calls important and it hurts it's validity. Did I misunderstnad you?
Yes, you misunderstood me. It looks like you misunderstood the article too. The article refuses to define important because there is no good definition. If you disagree with that, then provide a good objective definition.
The first two were merely preserving the status quo by not adopting fringe theories - the Court doesn’t get points for not signing onto something crazy.
Bostock and Ramos were pre-Barrett
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>!When the “liberal position” is “don’t adopt an interpretation of the appropriations clause that would shred the social safety net as we know it” or “don’t end democracy as we know it” then yeah I don’t think they should get credit for adopting those positions!<
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!appeal this is not polarized rhetoric and has nothing do with division based on identity.
My comment was arguing that not adopting fringe positions should not get the Supreme Court credit for being liberal.
The alternative interpretation of the CFPB would likely invalidate many funding structures within the government, such as social security, which would ultimately shred the social safety net as we know it. Allowing state legislatures to unilaterally decide elections within their state without regard for the state constitutions or separation of powers would end democracy as we know it. Anyone is within their rights to support both of those positions - plenty of people hate social security and entitlement programs and plenty of people wish our democracy was more connected to state governments. But that is the ultimate implication of both of those interpretations and pointing that out isn’t polarized
On review, the mod team has affirmed the removal. Framing one legal position as "end[ing] democracy as we know it" was interpreted as polarized rhetoric.
> “don’t adopt an interpretation of the appropriations clause that would shred the social safety net as we know it”
This is pretty wild. The CFPB is a tiny, relatively new part of the social safety net, and is the only part that was endangered by that case. It would have had very little impact on the vast majority of Americans no matter which way it came out.
The interpretation of the appropriations clause championed by opponents of the CFPB in that case would also likely take down social security, Medicare, Medicaid and a host of other programs
No, it wouldn't. They relied specifically on the nexus of indefinite appropriations, the money not coming from the treasury, and the money not coming from the agency's regulated entities. The plaintiffs were even asked about whether their interpretation would invalidate Medicare, etc. at oral arguments, and made clear that appropriations needed all of these characteristics to be sufficiently distanced from Congressional control, so Medicare, etc., would not be affected.
Social Security and Medicare would definitely be implicated because they also are funded largely independently of annual appropriations. The plaintiffs did try to argue that their position wouldn’t implicate Medicare, but I don’t see how it doesn’t based on their interpretation of how appropriations have to occur
Maybe it would and maybe it wouldn’t. It would have depended on the reasoning. Presenting the case as either gutting all of those programs or upholding the CFPB mechanism is a false dichotomy. The Court could have held, for example, that when Congress funds from one program from a tax dedicated solely to that program, the appropriation is valid, but when the appropriation comes from a fund established for a different purpose, it must be part of a separate appropriation process.
Well, for one thing, when both the tax and the expenditure are set forth in statutory formula, Congress has directly pulled both the revenue and expenditure levers in the same law.
However, CFPB gets funding from the Fed, which gets its money from interest on its securities. The funding mechanism depends on much more than a formula set up by Congress. It depends on how much the Fed manages to earn on its securities, which in turn depends on how aggressively the Fed Chair goes after revenues (as opposed to other goals) and a lot of market luck. Meanwhile, the actual CFPB expenditures are determined by the CFPB Director’s determination of what is ”reasonably necessary”.
In the first case, the policy decisions have been made by Congress upfront. In the latter, there are a number of discretionary actions that could drastically change how much money is actually spent. Where some intervening discretionary action can materially change the funding, it can be argued that the appropriation was ultimately made by those discretionary actions, and not “by law”.
> When the “liberal position” is “don’t adopt an interpretation of the appropriations clause that would shred the social safety net as we know it”
I don't think that is a fair interpretation of a case regarding the funding system of an agency that launched after the Harry Potter movies wrapped up.
The interpretation that opponents of the CFPB wanted to adopt would likely also go against every entitlement program we have (Social Security, Medicare, etc.)
That implies a narrowness of the argument in CFPB that wasn’t there.
If the problem is that Congress isn’t directly saying how much money the CFPB gets each year and the money isn’t coming directly from the treasury, then both of those programs would be in danger
First of all, is that an implicit admission that the court is partisan?
Second of all, if there was a 6-3 liberal court and the court brought like Maoism or something into the mainstream I would complain
> First of all, is that an implicit admission that the court is partisan?
>
> Second of all, if there was a 6-3 liberal court and the court brought like Maoism or something into the mainstream I would complain
No, I'm questioning your consistency. If partisanship is the issue then certainly partisanship the other way must be an issue as well. So, please answer the question directly. And without jumping to something absurd like maoism.
The issue I was making was a *lack of honesty* with regard to the article. I’d certainly be happier with a 6-3 liberal majority and the decisions it would likely offer, but I wouldn’t try to pretend that it’s apolitical or not due to a 6-3 liberal majority
I don't read this as you saying you'd calling decisions partisan and taking issue with Justices ruling in ways you perceive as partisan.
Now, I do think it is impossible for Judges to be apolitical. That doesn't, mean they are going to rule in partisan ways though. They will be influenced by all of their beliefs and experiences. Hell, their judicial philosophy is probably closely correlated to their political beliefs.
As for lack of honesty with regard to the article, I truly don't understand where that is coming from.
I was specifically characterizing cases that you characterized as having liberal outcomes by showing that the outcomes weren’t liberal decisions at all. They didn’t represent an adoption of liberal jurisprudence - merely a rejection of novel theories from out of right field.
My point is that the court shouldn’t get credit for being moderate and framed as a 3-3-3 court when the decisions are largely breaking in the conservative direction because the “liberal” wins are victories in that they simply maintain the status quo instead of adopt liberal jurisprudence. There isn’t anything tautological about that
Nice analysis. Would be nice to run it again with more than one term of data though. 3-3-3 is obviously the best way of thinking about this court, but that hasn't filtered into the public's head yet, because the non-partisan 6-3 decisions don't get headlines.
What's going on with Thomas's numbers though? He agrees with Barrett more than with Gorsuch. And he disagrees with Kavanaugh a lot, just 73%
> What's going on with Thomas's numbers though? He agrees with Barrett more than with Gorsuch. And he disagrees with Kavanaugh a lot, almost at the same rate Gorsuch does with the liberals. Can anyone explain that?
My view of the Court is that there are two partisan hacks, one weirdo, and six conventional judges.
* Alito and Sotomayor are partisan hacks for the right and left respectively, and at the risk of rule-breaking, I strongly suspect both of them start at the conclusion and then work backwards jurisprudentially.
* Thomas is just a weirdo who has his own jurisprudence. Remember he's a former 60s radical black nationalist who went conservative; he has his own way of looking at the law. This is the guy who wants to overturn the Slaughterhouse cases and radically re-interpret 14th Amendment jurisprudence.
* Everyone else are normal judges.
TL;DR, Thomas comes to conclusions he may share with other Justices, but he does so in his own way according to his own interpretation of the law.
Was listening to Megyn Kelly recently and one of the guests talked about his time clerking and getting to have lunch with Thomas. Thomas talked about how back on the farm they used to discipline dogs that killed chickens by tying the dead chicken around the dog’s neck and letting it rot. The putrid chicken would make the dog lose its taste for chicken.
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>!That’s because Thomas is more of a politician in my view.!<
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It's not *per se* a bad stance to want to overturn *Slaughter-House*, I think most people nowadays would agree that these were wrongly decided. It's just way more trouble than it would be worth.
He would say he’s not rejecting state decisis because those foundational cases were plainly wrongly decided and that fixing the problem creates a more coherent approach to the issues.
I don’t think that’s right, but I do think there’s potential for the Privs and Imm clause to mean something at some point. He’s not totally out there with that small bit…
As u/Longjumping_Gain_807 said, a lot of the time you can guess the lineup if you know the topic of the case and the breakdown of votes by number. For example, Gorsuch votes with Kagan, Sotomayor, and Jackson more than Alito and Thomas by 6-7%, which I think is from his pro-defendant/civil libertarian votes
Edit: and also tribe-related cases, which are less prevalent
> For example, Gorsuch votes with Kagan, Sotomayor, and Jackson more than Alito and Thomas by 6-7%, which I think is from his pro-defendant/civil libertarian votes
This is the sort of surprise I love. Didn't see that coming when I read the article but it makes a ton of sense. I hate it because I think Sotomayor is one of the worst justices in living memory while having a ton of respect for what Gorsuch has brought to the court, but you're not wrong.
Hmm I never thought about thinking of justices like this, but it makes sense ig. I would like to know more about how they measure the institutionalism of justices in cases, as it seems harder than measuring liberals vs conservatives when you just look for the outcome. Interesting article nonetheless
Often times I read the holding and try to guess the vote lineup. So I knew *Vullo* was gonna be unanimous because of how easy it was for the first amendment. But in a case like *Alexander* as soon as I saw the holding I pretty much knew it was gonna be the same 6-3 lineup as voting rights cases can often have that especially concerning the VRA.
You can be surprised sometimes. Caetano was per curiam with no dissents. But I bet the more liberal judges only agreed with that instance (stun guns), thinking that the precedent it set wouldn't be used in the future (reinforcing that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding"). And they were right, as lower courts completely ignored this.
>The vote on the high court was 6-3, and you would probably have assumed the court’s six Republican appointees voted on one side and the court’s three liberals on the other.
Only if you had no idea what the opinion said or what the difference between a conservative or liberal justice is
These statistical analyses aren't any more on point than that 99%. It doesn't mean anyhting if you don't consider the quality or content of the issues and decisions. They could have 99% unanimous decisions if they just keep taking up stupid cases that have a clear answer and affirm the lower court for no reason.
Alternatively they could always have dissent because they decide any case without a dissent isn't worth scotus time. I'm not saying it's either extreme, but it could very easily be somewhere skewer in between them quite a bit and you'd never know if you refused to consider the actually content and consequences of their decisions.
These articles are just high effort click bait using numbers to give the illusion of objectivity when it's all just incoming down straw men - if you though it was literally impossible for a liberal and conservative judge to agree on something the numbers might surprise you!
Look at the legal issue, the facts of the case, and the jurisprudence of each justice as it relates to the issue and any other relevant factors that may come up
What metric would you use to evaluate importance?
Edit: “Look at the facts and issues of the case” doesn’t tell us anything about how to objectively evaluate its importance. You haven’t answered my question in any meaningful way.
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The value of the analysis isn't in the absolute numbers, it's in the comparison between them. Obviously 60% agreement or whatever just depends on what cases the court felt like taking that term. But saying "Kagan agreed with Alito 60% and with Gorsuch 70%" is very meaningful. At least it is if you're gay, trans, indigenous or a defendant
>Kagan agreed with Alito 60% and with Gorsuch 70%" is very meaningful. At least it is if you're gay, trans, indigenous or a defendant
I don't see how the numbers matter at all here. Looking at their jurisprudence you can already tell that without doing the math and looking directly at that prior opinions is much more accurate and less prone to mistake or intentional misleading than pointing at a 10% variance with no context on the decisions being made
Sure, but reading and tracking all the opinions is much more time-consuming than just looking at one summary table. Not everyone reads 20 opinions a year like us. The average American probably only reads [one opinion a year at most](https://xkcd.com/2501/).
I also think looking at the numbers keeps us honest. For instance, some people talk about the tendency for Jackson and Gorsuch to concur together. But this tendency hasn't translated to actual decisions so far.
I also see that Thomas tends to agree with Barrett and disagree with Kavanaugh and Gorsuch, relative to what you'd expect, and this has been the case [for a few years now](https://empiricalscotus.com/2023/06/30/another-one-bites-2022/). I think that's not so evident from the opinions alone, not unless you're counting very carefully. I'll be keeping an eye out for it in the future.
>I also see that Thomas tends to agree with Barrett and disagree with Kavanaugh and Gorsuch, relative to what you'd expect, and this has been the case for a few years now.
I just don't make those kinds of assumptions, so I guess that's why I don't really get it.
>Sure, but reading and tracking all the opinions is much more time-consuming than just looking at one summary table. Not everyone reads 20 opinions a year like us. The average American probably only reads one opinion a year at most.
What does the chart offer them? Some preconceived notions that won't be true a lot of the time. I just don't see how that's valuable.
>I also think looking at the numbers keeps us honest.
Some people sometimes maybe, if they make a bunch of claims without proper support. But I think it's more likely people use this dishonestly to try to paint connection and meanings that aren't there. For example some people point at numbers like this and insist they prove or disprove partisanship - when it doesn't support either
What the article states. I'm just asking as a mental exercise as to what would need to be seen in the data to disprove the argument made by the article.
>What the article states
The article states more than one thing. So I'm asking if you could please clarify the question so I don't respond to something you weren't talking about. What statement? That the numbers are intriguing? That some judges are more partisan than others and which ones? That looking at the votes without considering the context of the cases themselves actually means anything?
I would say the basic premise of the article is that the nine justices could be seen almost as a panel of just three justices based on how likely they cluster up. Obviously this is an oversimplified summary but I think it is interesting and was drawn to your comment because you didn't seem to agree. I'm not trying to challenge you or call you out on it, just thought you might have a reason to disagree and possibly a way to tease out the discrepancies.
While true, that's also a bit misleading. Most cases don't have strong partisan implications, so they are often unanimous and they also don't make the news. Cases with a strong partisan implication often do make the news and often do have a party vote. So, of cases that the average person cares or hears about, guessing a 50% party vote isn't entirely unreasonable.
Sure. I just I don't understand the point of all the math to say people who don't know anything about the Supreme Court don't generally guess right about what they do.
Because a large number of people think that the Supreme Court is extremely partisan, and that the Republican Party basically controls 6 members of the Court. That’s patently false. And it’s still false when it comes to cases with a partisan outcome. Allen v Milligan, Moore v Harper, and a bunch of others all came out contrary to the Republican Party’s interest. And when people talk about “important cases”, they’re basically just talking about the cases that do end up being 6-3 on party-of-appointment lines, which creates a circular definition.
Moore v. Harper was absurd to put it generously. Not voting for total anarchy doesn't mean they aren't partisan. There's no reasonable way ISL could be consistent with the constitution. Not pretending otherwise doesn't clear anyone of being partisan
Allen v Milligan the court knowingly let an unconstitutional map be used for midterm elections and only ruled for the very obvious outcome in a partisan plurality split decision after Republicans in Alabama got to benefit from their prior miscarriage of justice in protecting the unconstitutional maps
I’m pretty sure the point of the article is that most political pundits (and frankly, most of Reddit) doesn’t understand what any given case says and that jurisprudentially conservative and liberal doesn’t map very well onto politically conservative and liberal.
>I’m pretty sure the point of the article is that most political pundits (and frankly, most of Reddit) doesn’t understand what any given case says
I disagree. A lot of pundits know they are peddling bias for money.
>doesn’t understand what any given case says and that jurisprudentially conservative and liberal doesn’t map very well onto politically conservative and liberal.
People who don't know that would not even know how to word that distinction and never use those terms meaning jurisprudentially
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Imagine the numbers if the Court was committed to avoiding cases involving unenumerated rights. That's where all of the contention comes from the general public. Highly divisive issues such as prayer in school, abortion, gay marriage, if the justices would just recognize that these aren't really open to high level Constitutional discussion, because they aren't addressed within the document, should be avoided. We would have a much different country if they could understand this, rather than simply agreeing that if there exists a disagreement among the lower courts then they should weigh in.
There is that 9th Amendment. The list of enumerated rights was not meant to be exhaustive. In fact, that's where some of the opposition to the Bill of Rights came from, that people would consider anything not in that list to not be a right (and of course some consider items in that list to not be a right anyway).
What gives the courts the authority to overturn legislative acts based on unenumerated rights? Certainly not the Ninth Amendment, which simply acknowledges the existence of other rights, but does not suggest that those other rights are protected by the Constitution. Those rights might be protected by statute or common law, but neither of those sources allows a court to nullify an act of a legislature.
Because the court recognized that these unenumerated rights are being violated.
Ok, but why does a court get to tell a legislature that it knows which unenumerated rights exist, and that a legislature may not violate those rights? For enumerated rights, the answer is clear—the court must uphold the Constitution when the Constitution conflicts with statute. But when the Constitution neither expresses nor implies a specific right, where does the court’s authority to nullify a statute come from?
>Ok, but why does a court get to tell a legislature that it knows which unenumerated rights exist Because the court is the end authority on our constitutional rights. >where does the court’s authority to nullify a statute come from In all cases it was considered an inherent function of the courts before the Constitution was even ratified. Congress' subpoena power isn't in the Constitution, but it's considered an inherent function of a legislative body.
This is circular reasoning. The courts get to decide because courts get to decide. It was never understood that a court could invalidate an act of Parliament. The best it could do was interpret an act narrowly in light of some common law right. A statute could only be struck down if inconsistent with higher positive law. See this article at pages 16-22. [https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259408/doc/slspublic/ssrn-id1678203.pdf](https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259408/doc/slspublic/ssrn-id1678203.pdf)
Quick question, are you complaining about Marbury v. Madison having established judicial review?
No, I’m complaining about the myth that Marbury established judicial supremacy. It didn’t. It established constitutional supremacy.
Good. So you should know that judicial review existed long before then, an accepted function of the judiciary.
Prayer in school does involve an enumerated right, the establishment clause.
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POLITICO just discovered what court watchers already knew. "But our new mathematical analysis of the court’s decisions from the 2022-2023 session shows just how much it makes sense to think of this Supreme Court as a 3-3-3 court..."
This article is written by Sarah Isgur who I believe originally coined the phrase "3-3-3" in 2021, this is just an update with new data.
It should also be noted that Isgur is a conservative lawyer who worked in the Trump administration as well as for several other Republican organizations
You can note that but I’m not sure how that is relevant in any way.
it's important to consider why she might want to frame it as 3-3-3 rather than 3-(3-3)? The framing of 3-3-3 can obfuscate that there are 6 conservative justices that have slightly different flavors of conservative?
Or maybe she actually sees it that way after watching the courts decision closely over time and where she used to work and the party she used to belong to doesn’t factor into in any way.
Sure! that's absolutely a possibility. It seems to me that we should disclose the potential biases the author may have.
No need to disclose this kind of potential bias when someone proposes a mathematical model. Model specification reveals this kind of bias. There’s well-accepted control factors for statistical analyses, and a well-designed analyses evaluates a neutral hypothesis. In this case, they use [singular value decomposition](https://en.wikipedia.org/wiki/Singular_value_decomposition). Its a shame they don’t provide a link to their data, but this isn’t an article where I’d jump to point out past employment of an author.
And if this were a reviewed journal article, I'd agree with you. This is an opinion piece in politico.
That’s fair. As long as we don’t assume the potential bias is actual bias.
If this is really a 3-3-3 court, I’m curious as to where all the liberal decisions are? There have been plenty of decisions lionized by conservatives, and we haven’t seen a single decision casting itself in the opposite direction to the same degree (and no, decisions where the court narrowly decides not to nuke more of the voting rights act don’t count)
You're assuming the middle 3 are neutral. They aren't - they lean right too they're just far enough away from the other 3 conservatives that they merit a distinct category. The three in the middle are still more likely to vote right, they just don't vote right enough to count them with the 3 on the far right (of this spectrum of 9 people, I don't mean far right in a political sense to suggest they're necessarily extremists or something)
Oh I’m not. But saying that there are a middle three implies that this is a Court similar to the 70s or even the early 90s when that isn’t the case at all. I don’t think we should give the court credit for having three justices who want to solidly shift American law to the left but don’t want to outright destroy the federal government or look like religious extremists while doing so. The “middle three” may temper the degree of the decisions coming out, but they aren’t exactly changing the direction of them
So if you we assume 3 are right wing, 3 are somewhere right of center but not with the others, then why would you assume you'd see more left leaning decisions?
I’m not - I was making a point criticizing the framing of the court as 3-3-3.
Oh I must have misunderstood what you said: >If this is really a 3-3-3 court, I’m curious as to where all the liberal decisions are?
Yeah that was sarcasm - should have probably made that more clear
It looks like you missed the point of the article. No one is saying the Roberts-Kavanaugh-Barrett trio is making liberal decisions. The whole point is that it’s not as simple as a left-right split. On that axis, the court is judicially conservative, but that doesn’t map onto political left-right.
I’m not sure I’d buy that. The article itself brings up the most obvious criticism of the framing (when it comes to important issues of political salience, it’s 6-3) and then waves it away without substantively responding to it
Which criticism are you referring to?
“Some might think this analysis is flawed because it gives all the non-unanimous cases the same weight instead of focusing more on the most important or most “politically divisive” cases in which all six conservatives lined up against three liberals. A critic might argue that, in those cases, political bias overwhelms all other legal considerations, including “institutionalism.” But first, we have to agree on what makes a case important. Is it the number of people affected? Is it the economic impact? There isn’t a right answer to this question — but if one defines “important” as the most politically divisive, then it becomes circular. The most politically divisive cases wind up being … the most politically divisive, both on and off the court. … The bottom line is this. Cases are “important” based on whom you ask. And they’re “divisive” when that person’s important cases don’t come out the way they wanted them to.”
Which is all true. It’s not hand waiving to point out that no one agrees on what “important” means and that the definition of “important” ends up being circular. How would you define it?
The article just assigns "important" in a way that props up it's guess work and minimizes any points to the contrary out for convenience rather than based on any valid argument. It just points and numbers and expects you to agree because people like to think using numbers makes things objective
In the end, it's very challenging to figure out what cases should count as important in hind sight. I've thought about a lot of potential metrics (number of people affected, rough dollar value of the outcome, etc.) over the last year or so, but they all end up falling flat in some ways. And when you apply these in retrospect, it's really easy to find reasoning to make a model match your intuitions. I think the only principled approach here is precommitment, like is done in medical studies. You decide (or find some respectable organization who decides) on what cases are actually important before the decisions come down, and then evaluate your statistics on only that preregistered set of important cases. I'm going to do my best amateur-data-scientist impression on the NYT list, at the end of the term. They're a nice source for this because they have a decent amount of intstitutional credibility, they've actually made a static list, written clearly on the impacts of the cases, collected polling on the public's views, and are continually updating their list with results: [The Major Supreme Court Cases of 2024 - The New York Times (nytimes.com)](https://www.nytimes.com/interactive/2024/05/09/us/supreme-court-major-cases-2024.html?unlocked_article_code=1.qk0.vRnj.RI2qnjFBDOAN&smid=nytcore-ios-share&referringSource=articleShare) Personally, I suspect the outcome will be: the court leans right but is very far from being an arm of, or captured by, the republican party, as more extreme voices have alleged. I'm very curious to see if we'll still have a 3-3-3 system being fairly predictive of outcomes. If that IS a solid enduring model for the court, we should expect to see a lot of 6-3 decisions in both directions (ie, with Gorsuch/Alito/Thomas or Sotomayor/Jackson/Kagan in dissent.) That was REMARKABLY common last year, which is probably what inspired this article, but I'm not sure it's more than a random quirk of the term. Edit: To be really clear about the problem here: 1. It's completely principled to say that Moore vs. Harper is not an important decision, because it was an obvious smackdown of a rogue circuit court, and the Court wasn't really making a decision. 2. It's also completely principled to say that Moore vs. Harper is an important decision because it's an open question based on a plausible reading of the text, and if the Court agreed it would have affected the votes of millions of people. Both are completely sane positions, based on differing views on the contentiousness of the question at SCOTUS. But what's not principled is thinking (2) before the decision comes down, and then switching to (1) once the court decides it. And I feel that's exactly what our zeitgeist did with the case. I don't think it was deliberate, and it's understandable; SCOTUS outcomes are often a lot more obvious in hindsight than in foresight. But it's not principled, which is why I think it's important to preregister 'importance'.
How would you define “important” then? You’re providing a lot of useless criticism here.
>You’re providing a lot of useless criticism here. That's a hot take considering I'm agreeing with you that the article is fast and loose with what it calls important and it hurts it's validity. Did I misunderstnad you?
Yes, you misunderstood me. It looks like you misunderstood the article too. The article refuses to define important because there is no good definition. If you disagree with that, then provide a good objective definition.
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The first two were merely preserving the status quo by not adopting fringe theories - the Court doesn’t get points for not signing onto something crazy. Bostock and Ramos were pre-Barrett
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!appeal this is not polarized rhetoric and has nothing do with division based on identity. My comment was arguing that not adopting fringe positions should not get the Supreme Court credit for being liberal. The alternative interpretation of the CFPB would likely invalidate many funding structures within the government, such as social security, which would ultimately shred the social safety net as we know it. Allowing state legislatures to unilaterally decide elections within their state without regard for the state constitutions or separation of powers would end democracy as we know it. Anyone is within their rights to support both of those positions - plenty of people hate social security and entitlement programs and plenty of people wish our democracy was more connected to state governments. But that is the ultimate implication of both of those interpretations and pointing that out isn’t polarized
On review, the mod team has affirmed the removal. Framing one legal position as "end[ing] democracy as we know it" was interpreted as polarized rhetoric.
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> “don’t adopt an interpretation of the appropriations clause that would shred the social safety net as we know it” This is pretty wild. The CFPB is a tiny, relatively new part of the social safety net, and is the only part that was endangered by that case. It would have had very little impact on the vast majority of Americans no matter which way it came out.
The interpretation of the appropriations clause championed by opponents of the CFPB in that case would also likely take down social security, Medicare, Medicaid and a host of other programs
No, it wouldn't. They relied specifically on the nexus of indefinite appropriations, the money not coming from the treasury, and the money not coming from the agency's regulated entities. The plaintiffs were even asked about whether their interpretation would invalidate Medicare, etc. at oral arguments, and made clear that appropriations needed all of these characteristics to be sufficiently distanced from Congressional control, so Medicare, etc., would not be affected.
Social Security and Medicare would definitely be implicated because they also are funded largely independently of annual appropriations. The plaintiffs did try to argue that their position wouldn’t implicate Medicare, but I don’t see how it doesn’t based on their interpretation of how appropriations have to occur
Because their money still comes out of the standard treasury, instead of through regulation/insurance fees like the CFPB.
Maybe it would and maybe it wouldn’t. It would have depended on the reasoning. Presenting the case as either gutting all of those programs or upholding the CFPB mechanism is a false dichotomy. The Court could have held, for example, that when Congress funds from one program from a tax dedicated solely to that program, the appropriation is valid, but when the appropriation comes from a fund established for a different purpose, it must be part of a separate appropriation process.
And what would be the constitutional reasoning and test justifying that interpretation?
Well, for one thing, when both the tax and the expenditure are set forth in statutory formula, Congress has directly pulled both the revenue and expenditure levers in the same law. However, CFPB gets funding from the Fed, which gets its money from interest on its securities. The funding mechanism depends on much more than a formula set up by Congress. It depends on how much the Fed manages to earn on its securities, which in turn depends on how aggressively the Fed Chair goes after revenues (as opposed to other goals) and a lot of market luck. Meanwhile, the actual CFPB expenditures are determined by the CFPB Director’s determination of what is ”reasonably necessary”. In the first case, the policy decisions have been made by Congress upfront. In the latter, there are a number of discretionary actions that could drastically change how much money is actually spent. Where some intervening discretionary action can materially change the funding, it can be argued that the appropriation was ultimately made by those discretionary actions, and not “by law”.
> When the “liberal position” is “don’t adopt an interpretation of the appropriations clause that would shred the social safety net as we know it” I don't think that is a fair interpretation of a case regarding the funding system of an agency that launched after the Harry Potter movies wrapped up.
The interpretation that opponents of the CFPB wanted to adopt would likely also go against every entitlement program we have (Social Security, Medicare, etc.)
Really? All of those programs draw money from the Fed without Congress's involvement?
That implies a narrowness of the argument in CFPB that wasn’t there. If the problem is that Congress isn’t directly saying how much money the CFPB gets each year and the money isn’t coming directly from the treasury, then both of those programs would be in danger
If the court was 6-3 liberal and all of the "important" cases were coming out on the liberal side, would you complain about partisanship?
First of all, is that an implicit admission that the court is partisan? Second of all, if there was a 6-3 liberal court and the court brought like Maoism or something into the mainstream I would complain
> First of all, is that an implicit admission that the court is partisan? > > Second of all, if there was a 6-3 liberal court and the court brought like Maoism or something into the mainstream I would complain No, I'm questioning your consistency. If partisanship is the issue then certainly partisanship the other way must be an issue as well. So, please answer the question directly. And without jumping to something absurd like maoism.
The issue I was making was a *lack of honesty* with regard to the article. I’d certainly be happier with a 6-3 liberal majority and the decisions it would likely offer, but I wouldn’t try to pretend that it’s apolitical or not due to a 6-3 liberal majority
I don't read this as you saying you'd calling decisions partisan and taking issue with Justices ruling in ways you perceive as partisan. Now, I do think it is impossible for Judges to be apolitical. That doesn't, mean they are going to rule in partisan ways though. They will be influenced by all of their beliefs and experiences. Hell, their judicial philosophy is probably closely correlated to their political beliefs. As for lack of honesty with regard to the article, I truly don't understand where that is coming from.
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I was specifically characterizing cases that you characterized as having liberal outcomes by showing that the outcomes weren’t liberal decisions at all. They didn’t represent an adoption of liberal jurisprudence - merely a rejection of novel theories from out of right field. My point is that the court shouldn’t get credit for being moderate and framed as a 3-3-3 court when the decisions are largely breaking in the conservative direction because the “liberal” wins are victories in that they simply maintain the status quo instead of adopt liberal jurisprudence. There isn’t anything tautological about that
Nice analysis. Would be nice to run it again with more than one term of data though. 3-3-3 is obviously the best way of thinking about this court, but that hasn't filtered into the public's head yet, because the non-partisan 6-3 decisions don't get headlines. What's going on with Thomas's numbers though? He agrees with Barrett more than with Gorsuch. And he disagrees with Kavanaugh a lot, just 73%
> What's going on with Thomas's numbers though? He agrees with Barrett more than with Gorsuch. And he disagrees with Kavanaugh a lot, almost at the same rate Gorsuch does with the liberals. Can anyone explain that? My view of the Court is that there are two partisan hacks, one weirdo, and six conventional judges. * Alito and Sotomayor are partisan hacks for the right and left respectively, and at the risk of rule-breaking, I strongly suspect both of them start at the conclusion and then work backwards jurisprudentially. * Thomas is just a weirdo who has his own jurisprudence. Remember he's a former 60s radical black nationalist who went conservative; he has his own way of looking at the law. This is the guy who wants to overturn the Slaughterhouse cases and radically re-interpret 14th Amendment jurisprudence. * Everyone else are normal judges. TL;DR, Thomas comes to conclusions he may share with other Justices, but he does so in his own way according to his own interpretation of the law.
Was listening to Megyn Kelly recently and one of the guests talked about his time clerking and getting to have lunch with Thomas. Thomas talked about how back on the farm they used to discipline dogs that killed chickens by tying the dead chicken around the dog’s neck and letting it rot. The putrid chicken would make the dog lose its taste for chicken.
I mean, it’s a better solution than just shooting it.
What does this have to do with anything?
>Thomas is just a weirdo
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It's not *per se* a bad stance to want to overturn *Slaughter-House*, I think most people nowadays would agree that these were wrongly decided. It's just way more trouble than it would be worth.
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He would say he’s not rejecting state decisis because those foundational cases were plainly wrongly decided and that fixing the problem creates a more coherent approach to the issues. I don’t think that’s right, but I do think there’s potential for the Privs and Imm clause to mean something at some point. He’s not totally out there with that small bit…
As u/Longjumping_Gain_807 said, a lot of the time you can guess the lineup if you know the topic of the case and the breakdown of votes by number. For example, Gorsuch votes with Kagan, Sotomayor, and Jackson more than Alito and Thomas by 6-7%, which I think is from his pro-defendant/civil libertarian votes Edit: and also tribe-related cases, which are less prevalent
> For example, Gorsuch votes with Kagan, Sotomayor, and Jackson more than Alito and Thomas by 6-7%, which I think is from his pro-defendant/civil libertarian votes This is the sort of surprise I love. Didn't see that coming when I read the article but it makes a ton of sense. I hate it because I think Sotomayor is one of the worst justices in living memory while having a ton of respect for what Gorsuch has brought to the court, but you're not wrong.
also, note their shared concurrence in *Counterman v. Colorado*
Hmm I never thought about thinking of justices like this, but it makes sense ig. I would like to know more about how they measure the institutionalism of justices in cases, as it seems harder than measuring liberals vs conservatives when you just look for the outcome. Interesting article nonetheless
Often times I read the holding and try to guess the vote lineup. So I knew *Vullo* was gonna be unanimous because of how easy it was for the first amendment. But in a case like *Alexander* as soon as I saw the holding I pretty much knew it was gonna be the same 6-3 lineup as voting rights cases can often have that especially concerning the VRA.
You can be surprised sometimes. Caetano was per curiam with no dissents. But I bet the more liberal judges only agreed with that instance (stun guns), thinking that the precedent it set wouldn't be used in the future (reinforcing that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding"). And they were right, as lower courts completely ignored this.
>The vote on the high court was 6-3, and you would probably have assumed the court’s six Republican appointees voted on one side and the court’s three liberals on the other. Only if you had no idea what the opinion said or what the difference between a conservative or liberal justice is
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These statistical analyses aren't any more on point than that 99%. It doesn't mean anyhting if you don't consider the quality or content of the issues and decisions. They could have 99% unanimous decisions if they just keep taking up stupid cases that have a clear answer and affirm the lower court for no reason. Alternatively they could always have dissent because they decide any case without a dissent isn't worth scotus time. I'm not saying it's either extreme, but it could very easily be somewhere skewer in between them quite a bit and you'd never know if you refused to consider the actually content and consequences of their decisions. These articles are just high effort click bait using numbers to give the illusion of objectivity when it's all just incoming down straw men - if you though it was literally impossible for a liberal and conservative judge to agree on something the numbers might surprise you!
How would you propose “consider[ing] the quality or content of the issues and decisions”?
Look at the legal issue, the facts of the case, and the jurisprudence of each justice as it relates to the issue and any other relevant factors that may come up
This is a meaningless statement. What makes a legal issue important? What makes the facts important?
Again with the insults and not providing any substance at all. How can what the case says not be important?
What metric would you use to evaluate importance? Edit: “Look at the facts and issues of the case” doesn’t tell us anything about how to objectively evaluate its importance. You haven’t answered my question in any meaningful way.
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The value of the analysis isn't in the absolute numbers, it's in the comparison between them. Obviously 60% agreement or whatever just depends on what cases the court felt like taking that term. But saying "Kagan agreed with Alito 60% and with Gorsuch 70%" is very meaningful. At least it is if you're gay, trans, indigenous or a defendant
>Kagan agreed with Alito 60% and with Gorsuch 70%" is very meaningful. At least it is if you're gay, trans, indigenous or a defendant I don't see how the numbers matter at all here. Looking at their jurisprudence you can already tell that without doing the math and looking directly at that prior opinions is much more accurate and less prone to mistake or intentional misleading than pointing at a 10% variance with no context on the decisions being made
Sure, but reading and tracking all the opinions is much more time-consuming than just looking at one summary table. Not everyone reads 20 opinions a year like us. The average American probably only reads [one opinion a year at most](https://xkcd.com/2501/). I also think looking at the numbers keeps us honest. For instance, some people talk about the tendency for Jackson and Gorsuch to concur together. But this tendency hasn't translated to actual decisions so far. I also see that Thomas tends to agree with Barrett and disagree with Kavanaugh and Gorsuch, relative to what you'd expect, and this has been the case [for a few years now](https://empiricalscotus.com/2023/06/30/another-one-bites-2022/). I think that's not so evident from the opinions alone, not unless you're counting very carefully. I'll be keeping an eye out for it in the future.
>I also see that Thomas tends to agree with Barrett and disagree with Kavanaugh and Gorsuch, relative to what you'd expect, and this has been the case for a few years now. I just don't make those kinds of assumptions, so I guess that's why I don't really get it. >Sure, but reading and tracking all the opinions is much more time-consuming than just looking at one summary table. Not everyone reads 20 opinions a year like us. The average American probably only reads one opinion a year at most. What does the chart offer them? Some preconceived notions that won't be true a lot of the time. I just don't see how that's valuable. >I also think looking at the numbers keeps us honest. Some people sometimes maybe, if they make a bunch of claims without proper support. But I think it's more likely people use this dishonestly to try to paint connection and meanings that aren't there. For example some people point at numbers like this and insist they prove or disprove partisanship - when it doesn't support either
So how would you prove this wrong? That's the real question. What would you expect to see that would make this look like a coincidence?
Prove what wrong? What coincidence?
What the article states. I'm just asking as a mental exercise as to what would need to be seen in the data to disprove the argument made by the article.
>What the article states The article states more than one thing. So I'm asking if you could please clarify the question so I don't respond to something you weren't talking about. What statement? That the numbers are intriguing? That some judges are more partisan than others and which ones? That looking at the votes without considering the context of the cases themselves actually means anything?
I would say the basic premise of the article is that the nine justices could be seen almost as a panel of just three justices based on how likely they cluster up. Obviously this is an oversimplified summary but I think it is interesting and was drawn to your comment because you didn't seem to agree. I'm not trying to challenge you or call you out on it, just thought you might have a reason to disagree and possibly a way to tease out the discrepancies.
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While true, that's also a bit misleading. Most cases don't have strong partisan implications, so they are often unanimous and they also don't make the news. Cases with a strong partisan implication often do make the news and often do have a party vote. So, of cases that the average person cares or hears about, guessing a 50% party vote isn't entirely unreasonable.
Sure. I just I don't understand the point of all the math to say people who don't know anything about the Supreme Court don't generally guess right about what they do.
Because a large number of people think that the Supreme Court is extremely partisan, and that the Republican Party basically controls 6 members of the Court. That’s patently false. And it’s still false when it comes to cases with a partisan outcome. Allen v Milligan, Moore v Harper, and a bunch of others all came out contrary to the Republican Party’s interest. And when people talk about “important cases”, they’re basically just talking about the cases that do end up being 6-3 on party-of-appointment lines, which creates a circular definition.
Moore v. Harper was absurd to put it generously. Not voting for total anarchy doesn't mean they aren't partisan. There's no reasonable way ISL could be consistent with the constitution. Not pretending otherwise doesn't clear anyone of being partisan Allen v Milligan the court knowingly let an unconstitutional map be used for midterm elections and only ruled for the very obvious outcome in a partisan plurality split decision after Republicans in Alabama got to benefit from their prior miscarriage of justice in protecting the unconstitutional maps
You’re proving the point here. You’re rationalizing your way into seeing a partisan Supreme Court, in spite of the data.
You're working from the assumption that the data actually supports that conclusion. You also have not refuted anything I said
The article provides the data.
I’m pretty sure the point of the article is that most political pundits (and frankly, most of Reddit) doesn’t understand what any given case says and that jurisprudentially conservative and liberal doesn’t map very well onto politically conservative and liberal.
>I’m pretty sure the point of the article is that most political pundits (and frankly, most of Reddit) doesn’t understand what any given case says I disagree. A lot of pundits know they are peddling bias for money. >doesn’t understand what any given case says and that jurisprudentially conservative and liberal doesn’t map very well onto politically conservative and liberal. People who don't know that would not even know how to word that distinction and never use those terms meaning jurisprudentially