The Supreme Court Justices never appeared less satisfied with responses during an oral argument this Term than they did with those in Birchfield v. North Dakota. Mark Joseph Stern described in an article for Slate, “Ever wondered what it felt like on the Titanic when that iceberg ripped the hull? The sensation, I suspect, was quite similar to the horror that rippled through the courtroom when McCarthy begins to defend his position.” McCarthy defended the position of North Dakota in this case dealing with penalties that may be imposed against drivers unwilling to take roadside blood-alcohol tests.
Marcia Coyle for the National Law Journal highlighted the climate of the Court at that moment: “The frustration across the bench was palpable. [Justice Kagan said:] ‘You’re not answering the question.’ ‘You’re just not answering the question.’” This notion of inadequate responses from a state’s representative hearkens back to an old criticism of states’ representation in the Supreme Court. Much of this criticism has dried up in recent years as states have hired top tier attorneys to their staffs and have outsourced to nationally recognized Supreme Court advocates.
Flaws are still attributed to states’ representation before the Supreme Court, especially in criminal proceedings. A post on the ACLU’s website entitled “Inadequate Representation” claims, “few states provide adequate funds to compensate lawyers for their work or to investigate cases properly” and that “[i]n addition to inadequate funding, most states do not have meaningful competency standards.”
The oral arguments in Birchfield combined with some of these anecdotal remarks about states’ representation convey a potential handicap for the states. In this post, using data from 2010 through the present, I look at states’ success in the Supreme Court as well as the judicial behavior prevalent in these cases. To do this I analyze the outcomes of the 69 decisions that name states or localities or representatives of states’ agencies as parties (I marked a party as a state or locality if it was clear from the party’s name or from the affiliation of the state’s representative).
To start, there were eight per-curiam decisions involving states and localities in this set, which I excluded from the analyses unless otherwise mentioned. The table below looks at states’ and localities’ overall wins and losses by Term
This table only uses cases where there was a clear winner or loser in the judgment and so it excludes decisions that were affirmed and reversed in part. In total states won 43% of the cases across all Terms. This is by no means a terrible percentage but it is also well short of a 50% threshold. One possible explanatory factor I examined has to do with states’ and localities’ procedural (petitioner or respondent) as petitioners tend to fare better in the aggregate before the Supreme Court, however, of the 69 total cases, states were petitioners in 37 cases and respondents in 32 so this does not help explain the discrepancy.
Next I examined the outcomes based on vote distributions. In unanimous cases (either 9-0 or 8-0) states won seven times and lost eight times. States and localities were much less successful in cases with close votes (5-4 decisions). Here they lost thirteen times compared with five wins. Justice Kennedy authored more of these 5-4 decisions than any other Justice with five. Of these five, states and localities lost in three and won in two.
In the 5-4 decisions, the more conservative Justices – Roberts, Scalia, Alito, and Thomas dissented together seven times while the more liberal Justices – Kagan, Sotomayor, Breyer, and Ginsburg dissented together four times. A surprising combination of Justices -Scalia, Ginsburg, Kagan, and Sotomayor – dissented together three times as well.
In terms of an overall opinion author count, Justice Alito had seven, Breyer five, Ginsburg eight, Kagan six, Kennedy twelve (the most among the Justices), Thomas four, Roberts four, Scalia eight, and Sotomayor seven.
Looking at the per-curiam decisions in isolation, states and localities won six of these cases and lost two.
The following table provides the breakdown of participation by state (localities within states are clustered by their state).
California clearly was before the Court more than other state during this period with almost twice as many cases as Texas, which appeared the next most. California was more successful in these cases than the average success rate for states and localities with seven wins and six losses.
Several private attorneys represented states and localities in more than one case (excluding the per-curiam decisions). Private attorneys with multiple state or locality representations in this set include: Gregory Garre, David Frederick, Paul Clement, and Timothy Coates.
While states are clearly not as successful as the federal government before the Supreme Court, they succeed in a respectable number of cases. Notwithstanding the critiques of the oral arguments in Birchfield, states and localities appear to have overcome some of the past criticisms of their representation. With several forthcoming decisions this Term involving states or localities (most prominently United States v. Texas), we will soon have a larger data pool of recent decisions to help expand on this analysis.
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You seemed to have left out a significant number of relevant cases from the sample–habeas cases. Understandable, because those usually don’t have the geographic identifier in the caption. But I wonder whether how the results would change if those cases were included in the sample.
Fair point and this might very well sway in states’ favor. I generally use the Supreme Court Database’s coding for the initial case list and so this likely is a byproduct of the cases included in that set.
Adam, as someone who works closely with state Attorney General offices on their Supreme Court cases, let me give a couple of quick responses. First, you wrote that “Much of this criticism has dried up in recent years as states have hired top tier attorneys to their staffs and have outsourced to nationally recognized Supreme Court advocates.” I heartily agree with the first part of the statement; but not with the last part. State AG offices only rarely hire outside counsel to take over Supreme Court cases. Collectively, it happens about twice a Term out of a rough total of 20 argued cases a Term handled by AG offices. (One can quibble about how to count cases, such as Franchise Tax Board of California v. Hyatt, where a state agency (not the AG office) hired outside counsel.) So the states’ improved reputation in the Court is almost entirely attributable to their upping their game, not to outsourcing.
Second, you wrote that “Flaws are still attributed to states’ representation before the Supreme Court, especially in criminal proceedings. A post on the ACLU’s website entitled ‘Inadequate Representation’ claims, ‘few states provide adequate funds to compensate lawyers for their work or to investigate cases properly’ and that ‘[i]n addition to inadequate funding, most states do not have meaningful competency standards.'” But that concern goes to the quality of the defense side of the case, not the prosecution side. When one says that the states are doing a good (or not so good) job in the Court, one usually is not speaking about how the criminal defense bar is doing.
To be sure, not every state argument in the Court is a home run. But I think the consensus view is that states are doing an excellent job these days.
Enjoying the blog! Keep up the great work.
All insightful points and I do think that states are performing much better these days in the Supreme Court. Thanks for commenting.