California Bar Journal
CBJ - August 2011 #02.
October Term 2010: The Conservatives Triumph
The California LawyerAugust 2011October Term 2010: The Conservatives TriumphBy Erwin ChemerinskyThe Supreme Court's October Term 2010 was a year that conservatives will cheer over and liberals will bemoan. The Court had fewer blockbuster decisions that attracted national media attention than in many years, but it decided an extraordinarily large number of cases that will affect the day-to-day work of lawyers. In a significant number of cases, the Court ruled in favor of government and business lawyers who sought to restrict access to the courts.
Overall, the Supreme Court decided 75 cases after briefing and oral argument. That is the same number as the year before and about average for the six years of the Roberts Court, but less than half of what the Court was deciding in the 1980s. The two justices who were most often in agreement were Chief Justice John Roberts and Justice Samuel Alito, who voted together more than 96 percent of the time. Next most often in agreement were Justices Sonia Sotomayor and Elena Kagan, who voted together 94 percent of the time.
It continues to be the Anthony Kennedy Court. Kennedy was the justice most often in the majority, 94 percent of the time. As in every prior year of the Roberts Court, the impact of Justice Kennedy was most evident in 5-4 decisions. There were 16 5-4 decisions and Kennedy was in the majority in 14, the most of any justice.
It is possible to get a sense of the ideology of the term and the overall ideology of the Roberts Court by focusing on the 5-4 decisions that were divided along traditional ideological lines. There were 14 such decisions this term, where Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Alito were on one side and Justices Ruth Bader Ginsburg, Stephen Breyer, Sotomayor and Kagan were on the other. Justice Kennedy sided with the conservatives in 10 and with the liberals in four. The prior year, in October Term 2009, there were 12 such ideologically divided 5-4 decisions and Justice Kennedy was with the conservatives in nine and the liberals in three. And the year before that, there were 16 decisions split along ideological lines; Kennedy sided with the conservatives in 11 and the liberals in five. For the six terms of the Roberts Court, Kennedy has been with the conservatives more than 70 percent of the time when the Court divides 5-4 along ideological lines.
Some of the most important rulings of the term were in the areas of the First Amendment, access to the courts and criminal procedure. Justice Kennedy's role as the "swing justice" was evident as to all of these topics.
The two free speech decisions that received great...