Last year’s term ended with some interesting commentary by professors, reporters and bloggers. Experienced Supreme Court attorney and professor Neal Katyal started the discussion. In an op ed piece in the New York Times, he argued that the Court had come to consensus a surprising amount of the time. The Court agreed unanimously in more than 66% of its cases last term, he said. And that is more than the percentage agreement under many other Chief Justices. Including Justice Warren, Justice Burger and Justice Rehnquist.
Other commentators took issue with Katyal’s analysis. David Paul Kuhn noted that there has been wide fluctuation in the percentage of cases decided by one vote during the Roberts years. So, for example, a low percentage of cases (14%) were decided by one vote in Roberts first year as Chief, and the highest percentage ever decided by one vote in Supreme Court history the following year.
Another professor – Lee Epstein – said that the unanimity on the Court that one year was a function of case selection, not real consensus.
And, several observers have noted that while the Court may agree on the bottom line, there has been sharp disagreement on reasoning. So the bottom line vote may mask a deeper division. One example: McClullen deciding that a buffer zone around abortion clinics violated the first amendment. Justice Roberts joined four others and decided that the buffer zone statute was a neutral regulation of conduct, not speech, because concerns like congestion and crime were involved. So the decision avoided deciding the hard issues.
Different reasoning was also used to reach the same result in a 9-0 decision in the Noel Canning case (dealing with the President’s power to make recess appointments).
How did the last Supreme Court term turn out? How did that compare to prior years? What does that mean for the term ahead? Marcia Coyle, upcoming speaker at the Appellate Practice Council lunch on August 26, will have thoughts on all these things. She is a close observer of the Court for the National Law Journal and PBS Newshour.
And go here to register for the lunch on Tuesday, August 26.