Top of the Morning

Top of the morning

As the debate over President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court continues to heat up, the national consumer advocacy group, Public Citizen, has released an interesting new report on the Court’s performance in 2008. The bottom line: the Bush years have taken their toll and it will probably take a lot more than a Justice Sotomayor to slow the Court’s decades-long march to the right.

Here are some excerpts:

This Term, forty-three cases on the Supreme Court’s docket presented the Court with the opportunity to expand or contract individual and environmental rights. On the whole, the Court contracted rights on two-thirds of the issues presented (31 of 46). That percentage did not vary much from category to category, with the exception of Environmental Law, where the Court held against environmental claims in all five cases….

Overall, the individual justices lined up as would be expected. Justice Ginsburg was most likely to vote in favor of expanding rights and did so on 76% of the issues. She was also the only justice to vote in favor of environmental claims in each of the five cases. Unsurprisingly, Justice Ginsburg was followed closely by Justice Stevens (voting to expand rights on 72% of the issues), Justice Souter (70%), and Justice Breyer (59%). On the other end of the scale, Justice Alito voted most frequently against the expansion of rights, voting to contract rights on 91% of the issues. On access to courts and remedies issues, Justice Alito voted against expansion of rights 100% of the time. He was followed by Chief Justice Roberts (voting to contract rights on 87% of the issues), Justices Scalia and Thomas (each voting to contract rights on 85% of issues), and Justice Kennedy (76%).

These numbers reveal that the “conservative” justices—Chief Justice Roberts and Justices Scalia, Thomas, and Alito—are each more likely to vote to contract rights than any of the four “liberal” justices are likely to vote to expand or preserve rights. In other words, to the extent that votes to expand or contract rights measure political conservatism or liberalism, all the “conservative” justices are more conservative than any of the “liberal” justices are liberal. Justice Breyer, considered one of the Court’s “liberal” justices, was just as likely to vote to contract rights as to expand them in three of the four categories of cases.3 And the Court’s “swing” justice—Justice Kennedy—voted to contract rights three-fourths of the time.”

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