CBJ - August 2010 #04. Roberts and Kennedy were most often in the Supreme Court majority in Term 2009.

AuthorBy Erwin Chemerinsky

California Bar Journal

2010.

CBJ - August 2010 #04.

Roberts and Kennedy were most often in the Supreme Court majority in Term 2009

The California LawyerAugust 2010Roberts and Kennedy were most often in the Supreme Court majority in Term 2009By Erwin ChemerinskyANALYSIS

October Term 2009 will be most remembered for being the last on the Court after 35 years for Justice John Paul Stevens and the first for Justice Sonia Sotomayor. In many ways, it was like the prior four years in which John Roberts was Chief Justice. The Court decided 73 cases after briefing and oral argument, almost the same as the 75 during the year before.

There were 17 5-4 decisions, down a bit from the 23 5-4 rulings during October Term 2008. As has been true in each of the five years of the Roberts Court, Anthony Kennedy was in the majority in more 5-4 decisions - 13 of 17 - than any other justice.

A clear sense of the overall ideology of the Roberts Court can be found by looking at the 5-4 decisions in which the Court split along ideological lines, with Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito on one side, and Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sotomayor on the other. There were 12 such cases and Justice Kennedy sided with the conservative justices in nine of these and with the liberals in three. The year before, there were 16 such cases and Kennedy sided with conservatives in 11 and the liberals in five.

Chief Justice Roberts and Justice Kennedy were in the majority most frequently, each being part of the majority in 92 percent of the cases. The two justices most often in agreement were Justices Scalia and Thomas, agreeing 92 percent of the time. Interestingly, the next most frequent agreement was between Justices Ginsburg, Breyer and Sotomayor, who agreed with each other in 90 percent of the cases.

FEDERAL CIVIL PROCEDURE

For lawyers, some of the decisions with the greatest practical significance received the least media attention and did not divide the Court along ideological lines. For example, in Hertz v. Friend, the Court ruled unanimously that for purposes of diversity jurisdiction, a corporation's principal place of business is determined by looking to where it has its "nerve center," which is usually based on the location of its corporate headquarters. Under 28 U.S.C. §1332, a corporation is deemed to be a citizen of both the state where it is incorporated and the state where it has its principal place of business.

In Mohawk Industries Inc. v. Carpenter, the Court ruled that the denial of the protection of the attorney-client privilege by a federal district court is not subject to an interlocutory appeal. In Justice Sotomayor's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT