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Thursday, October 06, 2005

Sunstein v. Shugerman

Cass offers us an op-ed insisting that 5-4 decisions ain't no thing.  Jed Shugerman has provided hard data complicating Cass's analysis in Jed Handelsman Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev. 893 (2003) [LEXIS link].  Hillel previously discussed Jed's article here.  Here's a summary of the relevant chunk of Jed's work:

Before the Rehnquist Court, the Court had a bare majority in just twenty-two of its decisions overturning acts of Congress.  Since 1995, it split five to four in fifteen such cases, almost seventy percent of the pre-1995 total.  Although few of the five-four decisions before 1995 are considered major precedents, at least five or six of the recent opinions are very significant.

Accordingly, Cass's numbers may be misleading.  He only looks back through the 1980s and does not specify what types of cases are producing 5-4 splits.

Posted by Ethan Leib on October 6, 2005 at 03:37 PM in Article Spotlight | Permalink

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» Sunstein on 5-4, and Posner's Mother from The University of Chicago Law School Faculty Blog
In the New York Times today, Cass Sunstein writes about 5-to-4 decisions from the Supreme Court, arguing that such splits will persist even if the political composition of the Court shifts after President Bush's two appointments. Over at PrawfsBlawg, E... [Read More]

Tracked on Oct 8, 2005 9:25:40 AM

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Ethan,

I'm a little skeptical, given the qualifier "overturning acts of Congress." What about overturned state laws? As a gross oversimplification, the Rehnquist Court overturns federal laws, while the Warren Court overturned state laws.

There may be a valid reason to only consider the former. But absent such a reason, I'd like to see whether the 5-4 pattern holds up when we consider the numbers as applied to overturned state laws.

Posted by: Kaimi | Oct 6, 2005 5:28:29 PM

What about overturning prior court precedents for that matter?

Posted by: bob | Oct 7, 2005 5:23:52 PM

Kaimi, good point. I considered this in my article, and I used the Congressional Research Service's The Constitution of the United States of America: Analysis and Interpretation, which tracks Supreme Court rulings overturning federal, state and local laws. Over the 20th century, each Court, from the Lochner Court to the Warren Court, struck down state laws about ten times a year, and the Burger Court increased that pace significantly, and also did so with the sharpest increase of 5-4 votes. Here's what I wrote in the article:

The Warren Court had struck down state laws about ten times a year, and with a five-four vote only nine times in sixteen years, a pace consistent with the rest of the twentieth century. By contrast, the Burger Court struck down state laws about seventeen times a year, and by a five-four vote twenty-five times in seventeen years, which were both unprecedented levels of activism against legislation. (37 Ga. L. Rev 893, 927).

The liberals on the Burger Court, invoking Free Exercise, the Establishment Clause, due process, and equal protection, seem to have done the most to undermine consensus on the Court. Bob Woodward's The Brethren offers an inside picture at how consensus collapsed under Burger's imperious and silly chief justiceship, and under the weight of some huge personalities. The Rehnquist Court indeed has struck down fewer state laws, returning to the pre-Burger pattern, but it has increased the number of 5-4 decisions.

Posted by: Jed | Oct 10, 2005 8:31:29 AM

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