The sorry history of DACA that I posted yesterday did not include the role of the courts in the debacle. The editors of the Wall Street Journal have remedied that:
The Justices are being warned in DHS v. University of California Regents that if they don’t uphold lower-court injunctions, a million young adults who were brought to the U.S. illegally as children could be deported to a country of which they have no memory. We agree these young adults (often called Dreamers) should be able to remain in the U.S.
But this all started when President Obama, under the smokescreen of prosecutorial discretion, offered legal status and work permits if these adults came out of the shadows. That legal status was never secure, and states threatened litigation if Mr. Trump didn’t rescind Daca. In September 2017 Mr. Trump ordered the program wound down and gave Congress six months to protect Daca recipients with an option to renew work permits for two years.
The goal was to use the time to negotiate a political compromise, but Democrats walked away after lower courts enjoined the rescission and removed an impetus for compromise. The Dreamers have now become pawns due to a breakdown of the Constitution’s separation of powers that needs repairing.
If you can get what you want from friendly courts that are willing to torture the law into a pretzel to make it say what you want, why compromise? That’s why the Ninth and Sixth Circuits have higher rates of reversal than the other circuits—they’re the most political. We should be encouraging political compromise. The alternative is an ever more polarizing country at daggers drawn, perhaps literally.
First, it is not so clear that the 9th and 6th have the highest rates of reversal, or that reversal means they were politically based decisions.
https://www.politifact.com/punditfact/statements/2017/feb/10/sean-hannity/no-9th-circuit-isnt-most-overturned-court-country-/
Second, we have a conservative dominated SCOTUS. Yet you are making the case that their decisions are not politically based. It appears that they dont track these stats very well but would it be surprising if the liberal courts in the past tended to reverse the opinions of conservative Circuit courts? So I have no doubt that political bias affects the decisions of the Circuit courts, but it also affects the SCOTUS so I am not sure why you single out the Circuit courts. (All moot anyway as McConnell refused to confirm Obama nominees and has loads dthe courts with conservatives.)
Steve
The Ninth Circuit has the largest number of cases per thousand reversed; the Sixth has the second largest number. The Ninth Circuit historically has had an astonishing percentage of its reversals by unanimous decisions.
If you try hard enough I’m sure you can find a metric that disproves it. IMO cases per thousand is the right metric (rather than number of cases reversed) since it discounts the number of cases it hears. That’s why number of cases reversed is not the right metric.
For politicization, read the Ninth and Sixth Circuits’ decisions. It’s obvious.
I’m not a progressive or a conservative. I’m moderate, centrist, pragmatic, or eclectic, depending on how you look at it. Our system of law is inherently conservative. That is the nature of a common law system. Progressive policies should be implemented by the legislatures not the courts.
If a person has a political bias, it’s likely such a bias will infiltrate his/her professional conduct, including ideological perspectives influencing judicial rulings. In the Trump presidency, for instance, we’ve seen numerous opinions flowing from San Francisco and Hawaii which need no crystal ball in speculating the outcomes – all ruling against the current administration. The Travel Ban decision by lower courts was especially obvious in demonstrating a court’s political bias, in light that a similar ban, exercised by the previous administration, was enacted without controversy. AG Barr has even discussed the current troubling overreach of district courts, whose decisions have expanded far beyond their judicial realm in discerning the Constitution perimeters of actions taken by the Executive Branch of government.
I don’t agree with that. A key trait in being a good jurist is the ability to decide cases based on the law. Better jurists don’t decide cases based on their preferences but on their merits and the law.
Judges are not angels but they shouldn’t be ideological activists, either.
“Better jurists don’t decide cases based on their preferences but on their merits and the law.”
Those better jurists don’t exist. It isn’t a coincidence that, just to pick two, RBG and Scalia disagreed on the cases where ideology mattered. In the insignificant cases or the ones where ideology wasn’t a central issue they could decide based upon law, but not on the big ones.
“For politicization, read the Ninth and Sixth Circuits’ decisions. It’s obvious.”
Or the 5th Circuit. Its obvious, but then SCOTUS agrees with those conservative opinions so they dont reverse them. They even recognize that in Texas where you have circuit judges putting Breitbart level rants in their opinions.
https://www.texastribune.org/2018/08/30/under-trump-5th-circuit-becoming-even-more-conservative/
Steve
What can I say? You’re wrong. Ruth Bader Ginsburg is the second most ideological justice on the Court, right after Sonia Sotomayor. Scalia is dead. The two most ideological conservative judges on the Supreme Court, Clarence Thomas and Samuel Alito, are each measurably less ideological than those two.
Best analysis I have seen recently. In the 5-4 decisions, the court is favoring the right. So if a case comes from a liberal court, it is more likely to be overturned.
https://www.scotusblog.com/2019/03/empirical-scotus-is-the-court-tracking-right-or-roberts-left/
Steve
In addition to what Dave said consider that judges may simply have different world views on the law. Strict constructionists vs living documents is the most obvious.
And the 8:1 or 7:2 decisions are generally Sonia Sotomayor or Sonia Sotomayor joined by Ruth Bader Ginsburg. Your interpretation is “right-tracking”; mine is “out of step with the legal mainstream”.
You might want to consider another interpretation. Those 5:4 decisions should never have reached the Court at all, only doing so because of activism in the lower courts.
The problem with the politicization of the courts is that many of the politicized judges don’t think they’re biased or their judgments are baised, they consider anyone who objects to their opinions to be politicized. This holds true for politicians and pundits. In short, ‘I’m not biased, you are!’
What’s worse is when the judiciary becomes part of a drive to seize and hold power or deny power to what becomes an irredeemable enemy. That’s the impetus behind nullification of the Electoral College, Senate seats being proportionalized like the House of Representatives, Supreme Court packing, and repeatedly counting votes until the desired result is achieved, and claims of fraud and voter suppression without clear evidence. A good way to incite rebellion.
Slow at work so I went through the 2017 cases by hand. A little hard to read because of the way SCOTUS blog does it so I may be off by one or two, but I count 17 cases where the vote was 8-1 or 7-2. 10 of those times the dissenters were Republicans, 6 times Democrats and 1 time it was one of each.
https://www.scotusblog.com/wp-content/uploads/2018/06/SB_alignment-all_20180629.pdf
Steve
2018 5 Republican to 3 Democrats
2016 12 Republican to 9 Democrats and 1 vote with one of each.
This covers the last 3 years of SCOTUS votes including the numbers up above. It looks to me like the person most likely to be in an 8-1 vote or 7-2 is actually Thomas, but it doesn’t look like the Democrats during this period are the ones out fo the legal mainstream. How much farther back do you think we should look?
Steve
The last time I went through this exercise was in 2015 and then in 2016. For the 2017 session I found ten cases with either one or two dissenters. They were:
Thomas-Alito
Ginsburg-Sotomayor
Thomas-Alito
Alito
Ginsburg-Sotomayor
Breyer-Sotomayor
Alito-Gorsuch
Breyer-Gorsuch
Breyer
Thomas
which says that Sotomayor, Breyer, and Ginsburg are the most ideological on the progressive wing of the Court and Thomas and Alito the most ideological on the conservative wing. Sotomayor voted with the majority 72% of the time, Breyer 73.3%, and Ginsburg 76%.
Thomas voted with the majority 81.3% of the time; Alito 80%.
I could keep digging into this but I don’t think that either one of us will persuade the other. IMO Sonia Sotomayor has a different view of law. She sees it as another way of effecting policy to a notably greater degree than any other justice.
You are conflating Republican vs Democrat ideological positions with strict constructionist vs activist interpretation of the law, steve. Thomas is a strict constructionist.
Then I think you did 2017 before the year was done. Even with your numbers, the split is 5 and 5 between R and D. I will look at 2015.
Yup, for 2015 the Rs were in the 8-1 and 7-2 group 14 times, the Dems 9 and twice it was both a Diem and an R. Since the Rs dominate in the number of cases when it was 8-1 or 7-2 so it would appear that the Rs are out of the legal mainstream. This was your metric BTW. (My OCD about counting stuff is coming out. The SCOTUS blog has all of the cases listed so it is pretty easy to count them.)
“You are conflating Republican vs Democrat ideological positions with strict constructionist vs activist interpretation of the law, steve”
Nope. Just acknowledging that people vote based upon their ideological bias. They may try to dress it up or rationalize it, but they are just voting their politics. Just not naive enough to believe the nonsense claiming otherwise.
Steve
I agree with that or nearly so. The difference is that I think ideological bias is one of the factors that causes individuals to vote as they do. You seem to think it is the only factor. Thomas’s bias is a rather extreme version of strict constructionism not the Republican party line.
” You seem to think it is the only factor. ”
I think that on most votes ideology doesn’t matter a lot. Try going through the docket of cases sometime. Most of them are stuff you won’t have heard of unless you are a court watcher, so on those they vote based upon law and precedent. Ideology really matters on mostly the big headline grabbing cases and a few others.
Steve
That’s the difference between our views. You keep referring to “Democratic” and “Republican” judges. I think the predisposition to vote based on ideology varies from judge to judge not party vs. party. If that were not the case the ACA would have been struck down and Obergefell v. Hodges would have been decided in the opposite way.
I do. And I read the Supreme Court Legal Review.
I’m not sure that’s the best way to track ideology.
There is a lot of data on this, and a comprehensive database at:
http://scdb.wustl.edu/
And useful charts here:
https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19.pdf
I haven’t had a chance to really dig into them.