Saturday, July 3, 2010

SCOTUSblog: Everything you read about the Supreme Court is wrong

Tom Goldstein, writing for SCOTUSblog, makes a compelling argument that most of the conventional wisdom we here about the Supreme Court is wrong. The common assumptions Goldstein addresses are:
  • The Court is easily categorized along liberal (Breyer, Stevens, Sotomayor, Ginsburg) and conservative (Roberts, Alito, Scalia, Thomas) lines, with one swing vote (Kennedy).
  • Big cases are decided by 5-4 majorities along ideological lines.
  • The Court is moving in a decidedly conservative direction.
  • The Court is pro-business.
  • Scalia and Thomas are the "arch-conservatives," providing extremely right-wing opinions, especially against criminal defendants. 
  • The liberal wing of the court is "activist," showing little deference to the elected branches and overturning precedent. 
  • The liberal wing "coddles criminals."
Goldstein provides examples of cases from this term where each of these assumptions held true, but the Court decided about 90 cases this term and one case does not make a trend. Fewer than 20% were decided by a 5-4 vote and slightly more than 10% were decided along ideological lines. About half the decisions were unanimous (9-0).

Goldstein takes apart each of the other assumptions as well, citing a myriad of cases. His reflections on Scalia and Thomas are particularly interesting. While conservatives are often perceived as being more supportive of criminal prosecutors and less supportive of defendants, Goldstein argues that Scalia and Thomas have taken the side of defendants more than any of the other seven justices.

Also, the conservative wing has been more "activist," or willing to overturn Congress and precedent than the liberal wing. This makes sense, according to Goldstein, because as the court changes it will want to undo the decisions of prior courts, which would be viewed as bad decisions. When the court became more liberal in the 1960s-70s, for instance, it was more willing to overturn prior decisions made my more conservative courts. Now that the court has moved in a more conservative direction, it is more willing to overturn those decisions made by prior liberal courts.

Read the whole article here.

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