NICK EICHER, HOST: It’s Monday morning and we’re back at it for another week of The World and Everything in It. Today is the 24th of August, 2020. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Suppose you find yourself in a competitive game of Supreme Court trivia, you will be glad to know this information:
SCOTUSblog has released its annual “stat pack” for the term of the Supreme Court ended this summer.
It’s a compilation of statistics for most anything you might want to number crunch from the past term.
Ready to toss some stats back and forth, Nick?
EICHER: Let’s geek out.
REICHARD: Okay. How about this: which justice asked the first question most often?
EICHER: Well, I’ve listened to a lot of the argument tape and the memory that sticks in my mind is Justice Sonia Sotomayor because her interruptions are so abrupt. So maybe she’s the one who jumps in first. That’s my guess.
REICHARD: Justice Ruth Bader Ginsburg spoke up first most often. Who’d have thought?
Try this: which judicial circuit was reversed the most often?
EICHER: Easy. 9th circuit—most liberal. The U.S. Circuit Court of Appeals for the 9th Circuit.
REICHARD: Yep. I figured you’d get that one. The Supreme Court accepted 10 cases from that circuit, and only one was not reversed. Whoopsies!
Next: how many split opinions this past term?
EICHER: Split opinions. I don’t even know what that means.
REICHARD: Fourteen. And the average is fifteen over the past several years.
Ok, next question: which ideological side had victory the most often?
EICHER: Pretty blunt instrument, so I’m going to assume SCOTUSblog is putting Chief Justice John Roberts on the ideological side with Justices Thomas, Alito, Gorsuch, and Kavanaugh as a conservative ideological side?
REICHARD: Yes. And then liberal means Ginsburg, Breyer, Sotomayor, Kagan, plus one conservative.
EICHER: Uh, lemme guess. Conservatives won, 71 percent of the time.
REICHARD: Oh, no fair, you peeked!
EICHER: It’s impossible to know these! Next year, how about I grab the stat pack and quiz you? That seems a little more competitive.
REICHARD: Well, that commits me publicly.
These stats do tell a story—and it takes some analysis—so I called up a law professor who’s gone through the stats and sees a story in them: Rick Garnett—he teaches constitutional law at Notre Dame Law School. He clerked for the late Chief Justice William Rehnquist and has a special interest in the role of religious belief in politics and society.
I started by asking Garnett what stats stood out to him this past term?
GARNETT: Well, I think I’ll start with two. So one statistic that is striking is that the court this year decided about as few cases as in any living person’s memory. You know, back as recently as the eighties, the Supreme Court would in a particular term might decide, you know, 120 cases or so. And that number has been declining and certainly declined during the tenure of my former boss, Chief Justice Rehnquist, but that’s continued under Chief Justice Roberts. And last year, and not simply because of the coronavirus issue, the court decided not the fewest cases ever, but really down near the bottom. And that doesn’t mean certainly that they’re being lazy or not doing their job or anything. But it’s an interesting development that the Supreme Court is in a sense involving itself less in kind of the day to day legal work of other courts.
And then a second statistic that I think is just quite striking is that you know, Chief Justice John Roberts was in the majority in almost every case. It’s not unusual for a justice to be in the majority most of the time, but this was striking in nearly every single closely decided case. So this is the Roberts court, not simply because he’s the Chief Justice, but because he seems to be quite firmly in control of the court’s direction.
I asked Garnett which justices tended to agree with one another.
GARNETT: Well, it’s not surprising obviously that Justices Alito and Thomas agree very often. Chief justice Roberts and Justice Brett Kavanaugh agreed very often in both cases, we’re talking over 90%. And then Justices Ginsburg and Sotomayor, sort of the two most liberal justices, agreed in almost every case as well.
And it’s important to remember that in most cases at the Supreme Court, the justices all agree with each other, you know, more cases are decided 9-0 than are decided 5-4 and more cases are decided, you know, 7-2 than are decided 5-4 once you start adding those up. So generally speaking people often don’t appreciate this. There’s a fair amount of consensus in the court, but it’s interesting to notice that, you know, when there’s disagreement, you do see these blocks and you do see it a certain kind of philosophical cohesion that connects certain justices, which again, isn’t, isn’t surprising given that they were often justices nominated by presidents with similar philosophies.
Of the 14 split decisions this term, I wondered whether Garnett could draw any conclusions based on those, particularly with regard to cultural or political disputes.
GARNETT: Yeah, although most of the court’s cases are not kind of hot button culture or political questions. Most of them are technical legal questions. We do see it’s just a fact of judicial life that on the cases that seem to have kind of a cultural or a moral or political salience, the four justices who were appointed by Democratic presidents are a fairly reliable block.
Now there have been some exceptions. Justices Kagan and Breyer in several religious freedom cases have in recent years sided with the five Republican appointees. But it’s true that when you see a justice move to, for lack of a better word, the other side, at least in recent years, it’s more often been that one of the justices who was appointed by a Republican will join the justices who were appointed by a Democrat. And that that’s what happened in a few of the cases that were sort of high profile this year.
I also asked Garnett what cases in particular have great significance from this past term.
GARNETT: Well, a case that certainly caught a lot of people’s attention was a case called Bostock, which involved the interpretation of a federal anti-discrimination law, Title VII. And the question there was whether the word sex, which was in the statute, the statute prohibits discrimination based on sex. And it was enacted in 1964 if I recall. The question was whether that term included discrimination on the basis of sexual and or gender identity. And in that case, two of the Republican appointees, Justices Gorsuch and the chief, they joined the four democratic appointees to say, yes, the term sex in that statute has this broader meaning. And that surprised some observers because Justice Gorsuch in particular who wrote the opinion, hadn’t been expected to reach that outcome, but he read the statute in a particular way and decided that the way the statute was framed, the way the text read, if you looked at it just right, it covered those other forms of discrimination as well. So again, in most of the cases that were 5-4 you saw folks hanging together based on their traditional philosophy.
So a good example of that, of the hanging together, if you wanted one, there was a very important religious liberty case called Espinoza, out of Montana. And it had to do with funding for children who were attending religious schools. And Montana had decided that it violated the law. It violated Montana law to allow these kids who were receiving scholarships to use them at religious schools. And the Supreme Court held in what could be a very significant decision for the school choice movement that no, Montana’s not allowed to discriminate against kids who use these scholarships at religious schools. And that was a case where again the lines were drawn along the lines of the appointing president’s.
This was an odd term because the court shut down for a time, one justice was in the hospital, and arguments were conducted by phone for the first time ever. I wondered whether Garnett thought those factors affected the opinions, if at all?
GARNETT: You know, in my judgment, and again, it’s just an opinion as a consumer of the court’s work, I don’t think that would have affected the decisions or even the content of the opinions. I mean, you know, based on my experience, when the justices are writing, the work of a Supreme Court justice is actually quite monastic. Each of the justices has his or her own little chambers with a couple of law clerks and they work together pretty closely. But a lot of the work is not in person. A lot of the work is, you know, somebody’s brain in front of a computer screen. And so the COVID wouldn’t have affected that all that much. It did affect the oral arguments quite a bit, but most court observers think that oral arguments actually don’t really affect the outcomes very much.
I think my impression of the oral arguments was that they were actually made quite a bit better by going by going online because the way Chief Justice Roberts ran them. Every justice got to go in the order of seniority and ask a question or two, and there was not to be any interrupting. And it’s just a fact of life during oral arguments for the last 30 or so years, and it’s been getting worse, particularly in the last, you know, five to 10 I’d say, a lot of interruptions, both of the lawyers and of each other. And so there was just much less of that this year, the lawyers were permitted to make their arguments, which I’m sure they appreciated. And the justices were allowed to finish their sentences without being interrupted by one of their colleagues, which I imagine everybody appreciated. And then for me, my wife was also a law professor. She clerked for Justice Clarence Thomas. So I know him reasonably well and I admire him very much. And sometimes there’s this strange idea out there that he doesn’t ask questions because he’s not paying attention or something. The truth is that he doesn’t ask questions because he wants to give the lawyers time to talk. But with this new arrangement, people got to hear Justice Thomas asking questions often for the first time in all the cases. And I think for a lot of us, it was kind of fun to get a window into how he was thinking about the case, because again, he usually doesn’t ask that many.
The other useful aspect of Justice Thomas asking questions early on is he got to set the direction of the rest of the argument. He framed what came next or set up his colleagues for follow up questions that were helpful or enlightening.
Finally, I wondered what Professor Garnett thinks this last term portends for the future, especially in light of expanding Title VII employment protections to LGBT individuals.
GARNETT: Well, there are going to be a lot of controversies and disputes involving the application of those laws to religious believers and religious institutions.
So questions will come up about whether say a religiously affiliated university is allowed to have different dormitories for its students that are separated on the basis of biological sex or will instead, they’d be required to allow people to choose the dormitory of their preferred gender identity. That’s gonna come up and, and similar things along the lines of sexual orientation, there’ll be issues about, you know, to what extent are religious institutions or religious employers allowed to select their staff on the basis of certain moral commitments, right?
So, we will, as you suggested, have to work out the balance and sometimes the tension and even the conflict between religious liberty in a diverse society and the expanding understanding of what anti-discrimination law means.
That’s Professor Rick Garnett of Notre Dame Law School.
And that’s this week’s Legal Docket.