The Atlantic had this fascinating read on Saturday about Larry Youngblood’s conviction and subsequent year sentence for the 1983 rape of David Leon. Great look at false incarceration, DNA testing, and whether there exists a right of exoneration in legal precedent today.
SCOTUS
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Ideology in the Supreme Court
During its October 2012 term, the U.S. Supreme Court decided a number of high-profile cases, including cases on voting rights and same-sex marriage. The Court decided these and a number of other cases – 23 in all this term – by 5-4 (or 5-3) majorities. The “conservative bloc” members – Chief Justice Roberts and Justices Scalia, Thomas and Alito – were in the majority (with Justice Kennedy) in 10 of these 23 cases. And indeed the Court’s conservatives frequently vote to decide cases in the same way. For example, Chief Justice Roberts and Justice Alito agreed in 90% of all the Court’s cases this term, and Justices Scalia and Thomas agreed in 86%.
But the same (or even higher) levels of agreement were seen this term among the Court’s “liberal” justices: Justices Breyer and Kagan agreed in 91% of the cases, and Justices Ginsburg and Sotomayor agreed in 94%. The four members of the liberal wing voted as a bloc in most (17) of the 5-justice majority decisions, as did the four conservative justices (in 16 of the 23). And we see similar levels of agreement among the justices each year.
Ideological voting, in other words, is a two-way street. Liberal justices and conservative justices tend to vote with their ideological fellow travelers. The media often oversimplify this phenomenon by suggesting that a given justice’s vote is attributable to the political affiliation of the president who made the particular judicial appointment. But the reality is more complex and less sinister. Although decisions are to be made in accordance with the law, in most cases sound arguments can be made for differing interpretations of the relevant legal principles. And the suggestion that the justices simply do the bidding of their appointers ignores the fact that judges (like the rest of us) have distinct, sincerely-held political and constitutional philosophies, and that they (legitimately) bring those approaches to bear on the questions they decide.
The percentage of decisions made by a 5-justice majority during the recent term (29%) is slightly higher than the recent (previous four terms) average (of 22%). But significantly more (49%) of the Court’s decisions this year were unanimous. With all of the media focus on the justices’ disagreements, it is important to recognize that in most cases, the much-publicized right-left Supreme Court divide is bridged.
This piece was originally published in the September/October issue of WCNY Magazine.
For more from Professor Dolak, check out the recent SLACE Archive post about her appearance on WCNY‘s The Ivory Tower as well as her regular appearances on the program Friday nights at 8PM.
Andrew Sullivan on Gay Marriage and SCOTUS Cases
Andrew Sullivan on Gay Marriage and SCOTUS Cases
Last Sunday, Fareed Zarakia interviewed Anderew Sullivan about the conservative case for gay marriage and the recent same-sex marriage Supreme Court cases.
Here is a description of the interview:
Sullivan: We’re part of families. Gay people don’t – they’re not born under a gooseberry bush in San Francisco and then just unleashed on the country to improve your dinner party conversations and interior design. You know, that’s not what happens. They’re born and bred in Texas, in Oklahoma, in Alabama. And they’re in the military and they’re part of this country’s entire diversity. And they want to be a part of their own families. And they’re more traditional than you realize.
So then began the battle you’re still battling, which is with conservatives.
Sullivan: I think the great disappointment, the great disappointment is that this was a really, in some ways, a conservative argument. This was a minority group seeking responsibility, commitment, pooling resources. If you’re a couple and something happens to one of you, you have someone else to take care of you, not the government. There’s a really powerful conservative case for this. And so many of the Republican Party just never grappled with it until it was too late.
But in Kennedy, you know, Anthony Kennedy, Reagan appointee, I think you see the last strains of that moderate conservatism, which is, we do have this new emergent population. How do we integrate them? How do we make them part? I don’t want us to have a separate but equal institution in civil unions. And that was the big threat. And then Bush, when he actually endorsed a federal marriage amendment, suddenly the entire gay establishment were like, oh, we’re with you.
John Roberts Conservative Long Game?
John Roberts Conservative Long Game?
Recently, Terry Gross interviewed The New York Times‘ Supreme Court Correspondant, Adam Liptak, on NPR’s Fresh Air. Liptak and Gross discuss the High Court’s recent term, specifically the gay marriage cases and Liptak’s new e-book about gay rights. Liptak also argues that Chief Justice John Roberts is playing a conservative long game, allowing liberal short term victories in order to ensure eventual conservative goals.
Here is a description of the interview:
Last week, the Supreme Court wrapped up its eighth term under Chief Justice John Roberts, in which it handed down historic opinions on gay marriage, the Voting Rights Act and genetic patenting. Adam Liptak, who covers the court for The New York Times, says that in the years Roberts has led the court, the chief justice’s patient and methodical approach has allowed him to establish a robustly conservative record.
“I see him planting seeds in cases where he may get a large majority, including the court’s liberal wing, to sign on to short-term victories today that could result [in] long-term losses for the left tomorrow,” Liptak tells Fresh Air‘s Terry Gross.
The most notable example of this happened just last week, Liptak says. Drawing on language all eight justices had agreed to in a Voting Rights Act case four years ago, Roberts led the court in gutting a key section of the 1965 law, which addressed voting discrimination. The decision struck down a formula that was used to determine which jurisdictions needed federal approval before changing their voting rules. That freed nine states, mostly in the South, from federal oversight and ostensibly returned the issue to Congress.
On July 9, The New York Times and Byliner will publish an e-book by Liptak calledTo Have and Uphold: The Supreme Court and the Battle for Same-Sex Marriage.