A remarkable set of recent SCOTUS splits - is a message being sent?

Politics & Elections
1

Maybe I haven’t been paying attention and it happens more often than I realize, but I was struck by a recent set of split SCOTUS decisions where the Justices comprising the various splits have paired up (or tripled up) rather unexpectedly, at least to me.

In the gerrymandering case (here), the double jeopardy case (can the feds charge you with the same offence that a state court has already tried you on), and the uranium mining case (does the Federal government - under the Atomic Energy Act - trump states’ rights with respect to uranium mining). We have:

Gerrymandering
Opinion: GINSBURG (THOMAS, SOTOMAYOR, KAGAN, GORSUCH)

Dissenting: ALITO (ROBERTS, BREYER, KAVANAUGH)

Double jeopardy
Opinion: ALITO (ROBERTS, THOMAS, BREYER, SOTOMAYOR, KAGAN, KAVANAUGH) + THOMAS

Dissenting: GINSBURG, GORSUCH

Feds vs states’ rights
Opinion: GORSUCH (THOMAS, KAVANAUGH) + GINSBURG (SOTOMAYOR, KAGAN)

Dissenting: ROBERTS (BREYER, ALITO)

I mean how often do you see Thomas and Sotomayor as a pairing in a Constitutional law question? Ditto for Alito and Kagan. Ginsburg and Gorsuch together on a dissent? Breyer and Alito?

I imagine that representatives of each side (of both the split decision and of the judicial spectrum) make sure to implicitly note possible grounds for future arguments, but neither wants to derail things on this hill.

At the same time, I wonder if there has been an active effort being made by SCOTUS (and by Roberts in particular) to actually have the court at this juncture of history to be seen as balanced and non-ideologically-based. If nothing else, the fact that these cases were released as a cluster strikes me as being deliberate. Correct if I’m wrong but the order and dates of release of SCOTUS decisions is up to them.

2

It’s traditional to release several decisions at once just before the court recesses.

3

But why these now? To leave a good taste in people’s mouths before they recess for summer? They could have released these decisions separately and at any time since the beginning of the term, no?

4

I’d you look at all cases, typically judicial agreement is at least 50%. That means that Thomas and Sotomayor would vote together at least 50% of the time, and often higher. In the current term, it’s at about 60%.

If you isolate to cases where there is disagreement, like filter only on 5-4 opinions, then their agreement is very low, like 0-5% of the time.

Opinions are released when they are finalized - there is no requirement about a particular order. They write opinions and circulate, make edits in order, but they only release them when they are final so more contentious cases tend to take longer when they are seeking support or honing arguments.

5

There are still 20 cases pending, including racial gerrymandering, establishment (giant cross), and census question. These may give you a different impression after they are released.

6

they seem to be like college kids, wait until the last minute to do the work. :slight_smile:

7

I don’t think much should be read into this, except that it just indicates that SCOTUS justices aren’t 100% liberal or conservative. There will be a normal number of unusual votes every now and then and here we have a small cluster.

8

The point that should be made - but will be lost in the noise - is that no matter what some people like to believe or claim, the law is made out of personal opinions, beliefs, crotchets, and idiosyncrasies rather than philosophies. There may be some commonalities that get lumped into “conservative” or “liberal” or “originalism” or “living constitutionalism” but at base, each justice is an ego and will at times display that individuality.

9

I may be incorrect, but ISTM the gerrymandering case was not decided on merit. The decision was that the Virginia House of Delegates did not have standing. This type of ruling often gets lost in the headlines. So, it is a stretch to find partisan meaning in the ruling.

10

There are still two more political gerrymandering cases pending. The one in the OP was ruled based on an issue of standing, not about gerrymandering though the underlying point of contention was gerrmandering.

11

I wondered if the mixed opinions/dissents establishes a credible nonpartisanship as they address the bigger gerrymandering (and other) questions.

12

I’m skeptical. Ginsburg doesn’t seem to think so either. Here’s an article that quotes her discussing it.

13

I have a bit of faint and implausible hope that the Court is actually illustrating the reason why they get life terms: so that once they’re in there they can make up their own minds without worrying about toeing a party line.

Note that I definitely don’t count on that theory holding in this day and age. But it sure would be nice if it did.

14

Not every issue lends itself to an orderly liberal/conservative split.

15

**

I read this one, and Thomas’s concurrence – mostly a loooong discussion of stare decisis/precedent, and why he thought the majority was wrong about the extent or strength of stare decisis – struck me as him indicating that he’d vote to overturn Roe v. Wade if a similar case ends up before the Supremes.

16

An interesting article from Reuters: As legal glare turns to Trump, his faith in Supreme Court may be tested

"But as the focus of some of the major legal challenges shifts from his policies to Trump himself, there could be disappointments in store for him, according to some legal experts, in particular if the Supreme Court stoutly defends the ability of Congress to pursue investigations of the president.

The conservative justices “won’t feel any loyalty to Trump, but will instead support strong separation of powers” as delineated in the U.S. Constitution assigning specific roles to the government’s executive, legislative and judicial branches, said conservative legal scholar J.W. Verret, an expert in corporate and securities law at George Mason University in Virginia. "

The proof is in the pudding, I say. We’ll see what happens.

17

Thomas already has voted to overturn Roe in 1992 in Planned Parenthood v. Casey. He and Scalia have in almost all of the abortion cases said that Roe is a bunch of hooey and should be overturned. A vote to overturn Roe is guaranteed by Thomas.

18

[quote=“KarlGauss, post:1, topic:835701”]

nm.

19

O/T: I hate that idiom. It’s nothing more than a mangling of the original dollop of folk wisdom: The proof of the pudding is in the tasting.

There. I’ve fought some ignorance today. I’m going back to bed.

Carry on.

20

Some signal. The Court voted to allow Maryland to maintain a 40 foot cross on public land, as clear an establishment of one religion over the rest as can be imaged.

A complicated set of decisions were released, but the final vote was 7-2.

Approving: ALITO, ROBERTS, THOMAS, BREYER, GORSUCH, KAGAN, KAVANAUGH, THOMAS

Dissenting: GINSBURG, SOTOMAYOR

Do not put any hopes at all on the impossible chance that the Court won’t be as conservative as Mike Pence’s [del]wet[/del] dry dreams.