The consequences of certain decisions have repercussions far beyond those that affect the immediate cases. While this is an indisputable aspect of decisions from courts of last resort, prognosticating the potential consequences of decisions is an art fraught with questionable inferences. In a series of decisions the Supreme Court has a substantial policy impact. These are cases where the Court directly shifts policy either by ruling a statute (federal, state, or local) unconstitutional or by overturning its own precedent (as coded in the Supreme Court Database). On one hand the Court makes such rulings infrequently only averaging around five of these decisions a term since the 2000 term. On the other hand, for a Court which isn’t charged with policy creation, but which has taken on the role of Constitutional interpreter, this extent of policy impact may also seem significant.
This post examines the attorneys and justices involved in these decisions since the 2000 Supreme Court term. From the perspective of an attorney, winning a case that also leads to such a shift in policy is an achievement more significant than a normal Court decision (which is no small achievement in itself). On one hand it is an extraordinary opportunity for attorneys to try such cases. On the other hand, the attorneys in such cases are charged with an uphill battle in explaining to the justices why the status quo is not only insufficient, but also generally contrary to the constitution.
Justices and Importance
There are a few factors in such cases that convey the magnitude of such decisions. The first is that these decisions generally lead to longer deliberations than other decisions. The justices, for example, took an average of 91.73 days between argument and decision last term and an average 77.77 days since the 2005 term. Focusing only on decisions where the Court ruled a statute unconstitutional or overturned its own precedent since the 2000 term, the following figure shows the average amount of time between oral argument and decision release by majority authoring justice.
Only justices O’Connor and Rehnquist averaged fewer than last year’s average of 91.73 days. The time to decision for these opinions, both on average and by justice, often far exceeded this mark. Justices Rehnquist and O’Connor who both left the Court around 2005 only had the opportunity to author a few such decisions compared to the other justices. The next figure shows the breakdown of number of such majority opinions per justice.
Not surprisingly given the impact of such decisions, the swing justice for the majority of this time period, Justice Kennedy, authored far more of these majority opinions than any of the other justices. There is a large drop to Justice Roberts who authored the next most majority opinions with 13. With two pieces of information – the time to decision and the majority author – along with the importance of such decisions, it may come as no surprise that most of these decisions were and are decided by one vote. The following figure breaks down the vote-split differential across this set of cases.
There are more than three times as many 5-4 splits as there are 6-3 splits which come up the next most frequently. There also have been a number of unanimous decisions in such cases as this is the third most frequent split with nine such decisions. Still, with cases in this set like Shelby County v. Holder, Citizens United v. FEC, and Obergefell v. Hodges, which so obviously caused rifts between the justices, there is often little common ground for the justices on the left and the right of the ideological spectrum.
Winning such a case is a milestone in any attorney’s career. Several elite attorneys have helped to convince the justices to overturn precedent or rule a statute unconstitutional in multiple instances since the 2000 term. These attorneys with multiple wins are displayed in the figure below.
All attorneys with multiple wins of this ilk are well known among Supreme Court circles and several including Paul Clement, Donald Verrilli, Seth Waxman, and Ted Olson also served as the United States Solicitor General. Aside from former-SG’s, Stanford Law School’s Supreme Court Litigation Clinic’s Director Jeffrey Fisher is the only other attorney with more than two such victories. Fisher’s victories were in Kennedy v. Louisiana, Blakely v. Washington (state statute ruled unconstitutional), and Crawford v. Washington (precedent overturned). Waxman’s wins in Hall v. Florida, Hurst v. Florida, and Roper v. Simmons were all litigated after he completed his government service. Other attorneys on this list include Supreme Court Bar elite attorneys Paul M. Smith and Tom Goldstein, election law specialist James Bopp, Second Amendment advocate Alan Gura, and current Sixth Circuit Judge Jeffrey Sutton.
When viewing these attorney’s victories by justice and by the ideological direction of the decision (as coded in the United State Supreme Court Database) there are a few surprises.
Paul Clement who is often associated with high profile conservative positions actually won two liberal decisions under Justice Kennedy. The only two attorneys on this list with multiple conservative victories and no liberal wins are Ted Olson (two conservative Kennedy decisions) and Alan Gura (conservative decisions by Justices Alito and Scalia). On the other hand, several attorneys won multiple liberal victories along with no conservative wins including Jeffrey Fisher, Paul M. Smith, Tom Goldstein, and Seth Waxman.
A list of all successful arguing attorneys (excluding amici) in such cases since the 2000 term along with win counts can be found below.
There are many other factors that go into such decisions alongside input from the litigating attorneys. The role of the arguing attorney, however, should not be overlooked. Both as a representative and an advocate, these attorneys may impact the Court’s ultimate decisions in terms of direction and magnitude. In the next post, I will explore other important elements in such cases.
On Twitter: @AdamSFeldman