Is The Supreme Court Truly Supreme?  

Thursday, July 6, 2017

As a lawyer, I am most intrigued by the judicial branch of government. The Supreme Court gets most of the headlines within legal news. But as my late great mentor Rollie Rogers (Colorado's first Public Defender) said, "There is more (in) justice to be found (in) the lower courts down to the municipal level than there will ever be at the Supreme Court." And while I believe this may have merit, it is to the Supreme Court that I turn my focus.

With the latest Supreme Court Justice coming from Colorado, and rumors of retirements abounding, I thought I would do a bit of analysis. I have gotten close to arguing before the Supreme Court but was denied, as are the vast majority of cases. It has been said that the hot button issues post Justice Scalia's death were delayed. The Court's recent announcement of cases for the 2017 term makes up for the reticence. The Court has already announced that it will hear cases on the following: Trump's travel ban, gay rights v. religious freedom, gerrymandering, internet/cellphone privacy, corporate violations of human rights and worker groups to address workplace issues. Abortion, voting rights, and health care are also expected to make the docket.

The statistical analysis to understand ideological make up of the 2016-17 Court is not yet done and may skew due to the absence of a justice. I am using stats for 2016 with some averaging in my analysis. Most of these statistics come from a source called the SCOTUSblog Stat Pak.

Before launching into statistics, I thought some insight into my thinking would be helpful. To my knowledge, the US Constitution does not refer to conservative/liberal, republican/democratic thinking, The Justices of the Supreme Court, the final arbiter of matters constitutional, should be interpreting the constitution not with conservative or liberal ideology, but rather with a disciplined legal analysis that recognizes constitutional principles in the context in which the cases arise. The Founders knew not from airplanes, automobiles, pipelines, electricity, or the Internet, nor a country of more than 300 million people. Abraham Maslow might comment, "That is a lot of lab rats in the maze." For those modern issues the Founder's intent is inapposite.

For the last several years, approximately 8,000 cases per year are filed with the Supreme Court. Oral argument was granted in approximately 80 cases. In average, an additional 100 cases were decided without plenary review. On average for the past 5 terms, 49% of the cases were unanimously decided. 8% of the cases were decided 8 to 1, 12% of the cases were decided 7 to 2 and 11% of the cases were decided 6 to 3. So 80% of the cases were decided by significant majorities.

19% of the cases were decided by a 5 to 4 vote. Those cases covered areas including 3 criminal law cases and one gerrymandering case.

For those of us here in the 10th Circuit, the Court accepted 3 cases, 1 was affirmed and 2 were reversed.

I am left with the conclusion that the Supreme Court may not be as divided as Congress or the country. Would another Justice appointed by our current President make a difference? Given the breakdown just presented, I suggest not. If the Court rules on the 7 cases I mentioned in the first paragraph, we might project only 2 of those cases will be decided by a 5 to 4 vote. I suppose those owners whose ox had been gored will be upset, but my thinking is that those justices may have a better vision for the country than either the Congress or the President. Those two branches of government seemed to be more concerned with a vision of government and their reelection than a vision of our country.