Thursday, January 23, 2003

A cynic's recap of the Supreme Court term so far.

Well, I've been knocking myself out trying to give sensible predictions as to how the Court will rule in the cases that have been argued this Term. I've done pretty well, I think: of the cases that have already been decided after argument, I've been wrong on only two cases and right on 10. And three cases resulted in opinions even without having had oral argument. The whole list of all these cases is here, with links to pdf files of all the decisions. (There have also been two argued cases where the Court said "never mind" and declined to issue any ruling).

I could have done even better in my predictions -- indeed would have had a perfect score thus far -- had I followed this simple rule: In any case about criminal law (including the post-conviction rights of criminals), the government will win. This would have led me to avoid my two wrong predictions (Bean and Sattazahn), as well as allowing me clairvoyance with respect to two of the opinion-without-argument cases. Five of the 15 decided cases would have been correctly predicted, and none incorrectly, on the basis of this rule of thumb alone.

Another prediction that would have gotten you 5 points and no errors would be "That darn liberal Ninth Circuit? Reverse." In fact, these reversals have all been unanimous. But please don't fall for the old line that these unanimous reversals are proof that the Ninth Circuit's judges are "bad" (as in, incompetent); also unanimously reversed, so far, have been the Fifth and the Tenth Circuits, who aren't anybody's idea of liberal. I've talked about this before.

But having been cynical for a couple of paragraphs, I will try not to be such a grump and to reach the question: yes, but has the Court gotten anything seriously wrong yet? And how do you answer that? The obvious answer is that there's no agreed-upon way to answer the question. But here is my idea of a fun thought experiment along these lines: how would the Court's Term have been different if there were four cloned Justices Heldman, in place of the four most "conservative" (right-wing) Justices? The answer, as to the bottom-line outcomes of decided cases, is "not much at all." One person would be off death row in Pennsylvania (where he is now still scheduled to die by 5-4 vote), and we (the four of me, and Justice Stevens) would have held that the government waived the dispositive issue in US v. Recio. But other than that, the outcomes would probably have been the same.¹

What does this show? Take your pick: (a) that the cases that are decided this early in the Court's Term tend not to be divisive ones (he says, on the day after the anniversary of Roe v. Wade), or (b) that much of the real action on the Court comes not in deciding cases, but instead in deciding which cases to hear. Take yesterday's decision in Meyer v. Holley. Sure, it looks like the Ninth Circuit was probably wrong, but from reading the Supreme Court's opinion it seems that this precise issue had never come up in any other case before now; and that it would come up again in a way that really mattered in future cases, if ever, only very rarely. So was this really one of the 80-or-so most important cases of the year, one of the ones that the Supreme Court ought to be fooling with? The Justices Heldman would have very different priorities as to what issues are really deserving of the Court's consideration, and could fill up the Court's docket with review of "conservative" lower court decisions that are rather clearly wrong.

¹ Yes, I know that as a guy who loves the internet I'm supposed to decry Eldred, but I don't; I favor long-lasting and robust copyright protection. And I realized why, the other day, when the movie Shrek was on the TV, and the soundtrack included John Cale's version of Leonard Cohen's song "Hallelujah": I think it's great and even important that Leonard Cohen get a lot of money for writing such a song, whether it's used in a movie 15 or 50 or even somewhat more years after he wrote it. I don't know enough about music licensing to know whether John Cale would have gotten big checks from this too, but I hope so.

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