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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm feeling all wrapped up. How are you?
J. Aughenbaugh: Listeners, what Nia is referring to is what has now become part of our regular series, the final episode of our Summer of SCOTUS series where we do a wrap-up. We are recording this in early July. The Supreme Court has adjourned for almost two weeks now.
N. Rodgers: Except they're still issuing stuff because Donald Trump loves him in an emergency.
J. Aughenbaugh: Emergency docket appeal, which we will discuss, but this is the wrap-up episode.
N. Rodgers: This is one of the few times of the year that I like statistics. I'm not a big statistics person. I appreciate statistics, but I also know what is it lies, damn lies and statistics? You can make statistics say a lot of things that aren't particularly true.
J. Aughenbaugh: We will get into that in regards to how some statistics are interpreted, in particular, by the popular media. Former students, you are on alert. Once again, you're going to hear your former professor rant about how the popular media covers the Supreme Court.
N. Rodgers: You rant about that all the time.
J. Aughenbaugh: I rant about it all the time. I'm like, "Come on."
N. Rodgers: You wake up ranting about that.
J. Aughenbaugh: Yes.
N. Rodgers: The court's being wild these days in terms of who is siding with who and who's leaning into different kinds of things. Aughie's going to follow up with, I'm sure, a more focused opinion. We're recording July 10, and you'll be hearing this sometime in late July because we release all the Summer SCOTUS in late July. Sonia Sotomayor yesterday agreed with an unsigned opinion out of the emergency docket about riffing federal employees. She was like, "But the president does have the right to do that." She didn't say that she thought it was a good idea. She was very clear about that part. I read that and I was like, "She said what?" Because I have not seen Sotomayor agree with what must have been at least a conservative majority if it was not all of the conservatives. We don't know because on the emergency docket, they don't have to give the count. They don't have to say whether something passed or not. I was unsurprised by Justice Brown Jackson saying, "This is crap," because she's been saying that a lot lately about stuff. She's fired up on the other side, and she didn't surprise me at all, but it surprised me that Sotomayor was like, "I could see the point here."
J. Aughenbaugh: One of the themes of this wrap-up, listeners, is the fact that though the US Supreme Court finished up their opinions for the cases of the recently completed term, there's a whole bunch of emergency docket, sometimes referred to as the shadow docket work that the Supreme Court is going to have to address simply because there have been over 300 lawsuits filed in federal courts challenging Trump administration policies and executive orders since he took office in January of this year.
N. Rodgers: For anybody accounting, that's 300 in six months.
J. Aughenbaugh: Months. There's been more litigation in six months for the second Trump term than the entirety of the Bush 43 and Obama administration combined 10 years in office.
N. Rodgers: Whatever else you may say about President Trump, he makes people feel a certain way.
J. Aughenbaugh: Yes, he does.
N. Rodgers: They take those feelings to court.
J. Aughenbaugh: They take those feelings to court. It's a place where he feels comfortable. Let's face it.
N. Rodgers: He's a litigious individual. He likes court.
J. Aughenbaugh: He has no problem.
N. Rodgers: I think he likes the showmanship of trials.
J. Aughenbaugh: There's a process there and the actors are well known.
N. Rodgers: He likes speeding the system. He likes one-upping.
J. Aughenbaugh: One of the great ironies of his public life is for somebody who oftentimes criticizes lawyers, judges, law schools, his own administration is now going after prominent law schools. This is an individual who has really benefited from the legal profession. Let's face it. He's been convicted of felonies. He has lost numerous civil lawsuits.
N. Rodgers: He's still president.
J. Aughenbaugh: He's still president, and he still has a burgeoning, if you will, private sector empire. But nevertheless, that's the emergency docket. In the case that Nia is referencing, is earlier this year, the Trump administration, led by the Department of Government Efficiency, DOGE, went ahead and issued a number of terminations and layoffs of federal employees working in various bureaucracies in the federal government.
N. Rodgers: A reduction in force.
J. Aughenbaugh: The RIFs. Now, a number of lower federal district court judges issued rulings that were, if you will, nationwide injunctions, claiming that more than likely once these cases go to trial, and hereto for, there haven't been any trials. These were just district court judges who issued injunctions saying, more than likely the Trump administration is going to lose, so I am stopping these reduction in force cuts, orders.
N. Rodgers: It's really hard to undo everything once you've done it.
J. Aughenbaugh: The Trump administration, much like as we discussed in a previous podcast episode in the Summer SCOTUS series, went to the Supreme Court and said, "This nationwide injunction is unconstitutional and illegal. It should only apply to the particular litigants who brought the lawsuit."
N. Rodgers: Unnumbered, so we don't know how many on either side. We know it's at least five, four.
J. Aughenbaugh: It was at least five, four, but that's the thing about rulings on the emergency or shadow docket. Typically, the Supreme Court does not say who voted in favor of the decision and who did not.
N. Rodgers: Or even how many? It could have been eight, one, for all we know.
J. Aughenbaugh: Sotomayor, however, wrote separately to say, while she agreed with her colleague, Brown Jackson, that perhaps the RIFs were illegal, she is signing on to the decision because the nationwide injunction was likely unconstitutional or illegal. This is where Nia was going with her comment, and this is one of the themes in our wrap-up, right now, liberals and conservatives are wildly peeved.
N. Rodgers: They are peeved with members of the court that they perceive to be shifting. Unfaithful. Thank you. Unfaithful. What an excellent word. Coney Barrett has taken all kinds of chewing by the MAGA faithful who says she is unfaithful, because she has occasionally gone to the middle. Every once in a while she goes, I wouldn't say to the left, but to the slightest left of middle. She's a solid conservative, but they don't like her conservative. They want her conservative to be all the way to the Thomas edge of the conservative, and she's just not. That's not how she's wired.
J. Aughenbaugh: There are two prominent examples here. One is Coney Barrett. Because some of them supporters of the Trump administration, the MAGA faithful, Make America Great Again. They're like, "Coney Barrett has not been as consistently supportive of Trump policies and executive orders. Why did we waste a Supreme Court slot on her when she is unfaithful?"
J. Aughenbaugh: On the left, there has been quite a bit of consternation about Justice Elena Kagan, who this term occasionally voted with the conservatives, leaving her liberal colleagues Sotomayor and Brown Jackson. Of course, the reality is, Nia, as you just pointed out, as we will discuss with statistics in just a moment, is Coney Barrett a conservative Supreme Court justice?
N. Rodgers: Absolutely.
J. Aughenbaugh: Absolutely. Is Elena Kagan a liberal Supreme Court justice?
N. Rodgers: Absolutely.
J. Aughenbaugh: Absolutely. But what you see is occasionally, they won't go as far in the case of Coney Barrett as her colleagues on the right side of the ideological spectrum, usually Thomas and Alito, Gorsuch. For Kagan, she will sometimes deviate from her liberal colleagues on the ideological spectrum, Sotomayor and Brown Jackson. What's fascinating about this is the assumption of both Republicans and Democrats, conservatives and liberals that Supreme Court justices will always do what the president who nominated them to the court would hope that they would do.
N. Rodgers: Yeah, you'd think they'd know better by now. You'd think they'd know better that justices, one, naturally their jurisprudence can shift in slight directions according to who they're on the court with. I remember that a long time ago you used to have an assignment where you used to say, how did this person shift the court while they were on it, or did they? If they did, how did they do that? Some people shift the court a lot, Scalia. Didn't Kagan say we're all textualists now because of Scalia's pushing of that narrative in the courts. There are nine people. If you don't absolutely despise your colleagues, what happens is that you listen to your colleagues, and because you recognize that they are intelligent, because you recognize that they have a legal philosophy, you go, okay, well, maybe that's not the worst point I've ever heard. That's part of the give and take of a small group of people who are like no other. That group of people is like no other. There are no extra people that they can call in and say, am I crazy or is this what's happening? This is it. You got these nine people and the clerks, and that's it. It's a very small closed world. I think the other thing, too, is that, Elena Kagan, I think, may be playing the long game.
J. Aughenbaugh: Sure.
N. Rodgers: She's a very, very long term thinker. The hallmarks of her career is that she looks out and says, where is this going to be in 15 years?
J. Aughenbaugh: If you think about Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, if they look at the math, and I know Nia and I are not normally big fans of math, but if you look at the math, it's pretty simple math on the current Supreme Court.
N. Rodgers: The fraction is against them.
J. Aughenbaugh: Six of your colleagues were appointed by Republican presidents. Sotomayor and Kagan have served with their colleagues for a number of years. They basically know how their colleagues are going to vote. If you want to have any influence whatsoever, and you're one of the three liberals, you have to pick and choose where you might be able to go ahead and persuade at least some of your colleagues to go with you. You might go ahead and sign on to a decision that could have been far worse but is at least palatable to you in the hopes that you then in the future can go ahead and say, hey, I've just written an opinion that maybe not satisfy you on all accounts as a conservative jurist, but you could agree with.
N. Rodgers: You're building out some goodwill.
J. Aughenbaugh: If you're Kagan, you're trying to appeal in particular to Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Coney Barrett. You can more than likely write off Thomas and Alito. Occasionally, Gorsuch because he can be somewhat idiosyncratic, you can appeal to him, but you don't know when that's going to happen, because that's Justice Gorsuch. But what's fascinating to me is how Kagan is responding differently to the current math compared to Sotomayor and Brown Jackson.
N. Rodgers: I would argue she's more calculating. Part of that, I suspect is because she was a dean in academia. Deans in Academia, if they don't learn anything else, they learn that politics is everything. You can get a lot or you can not get a lot depending on on how you work the politics of an institution.
J. Aughenbaugh: If you're a dean of a law school and she was the dean of Harvard Law for a few years, if you want to go ahead and get change, you must understand that change is frequently incremental.
N. Rodgers: You've got to give something to get it.
J. Aughenbaugh: That's right.
N. Rodgers: You're never going to just impose your will on others.
J. Aughenbaugh: That's the example of politics on the court. Even though most of the justices say, we're not political actors. Well, you may not be political like a president or a speaker of the House. But like those individuals, if you want to get things done, you must be able to persuade, and former Justice William Brennan used to say this. The most important number on the Supreme Court is five, because that's the majority. Brennan would be willing to accept a small change in jurisprudence on the court, whereas some of his liberal colleagues were like, we need to go faster or farther. Brennan would be like, but we lose the majority.
N. Rodgers: We don't get to five if we do that.
J. Aughenbaugh: That's right. I really believe, and again, this is one of the trend lines in regards to how the media has been covering the Supreme Court, I think it's a false narrative to go ahead and say that Coney Barrett is now a liberal. No, she just occasionally will go ahead and say, I'm going to focus on procedure. The way the Trump administration is doing this violates well-established processes.
N. Rodgers: Also she has seven children. She is used to compromise.
J. Aughenbaugh: Oh, good Lord, yes.
N. Rodgers: You don't get seven people out of the house in the morning to go to school if you are not prepared for compromise.
J. Aughenbaugh: Well, also, before she got appointed to the Sixth Circuit Court of Appeals, she was a professor at Notre Dame Law School.
N. Rodgers: Again, compromise.
J. Aughenbaugh: Compromise.
N. Rodgers: College students. You got to learn to compromise. Sorry. I was going to ask you, how many cases did we even have this time. Feels like we had approximately 946,000. Am I anywhere close?
J. Aughenbaugh: No. Depending on who's doing the counting, it's either 66 or 67, but nevertheless, six or seven.
N. Rodgers: That's not very many.
J. Aughenbaugh: Again, this is one of the consistent trend lines of the Roberts Court. Six or seven of those cases, Nia, came from the emergency or shadow docket. The other 60 were cases that the Supreme Court received written briefs, did oral arguments, and then issued opinions.
N. Rodgers: Only 60, they took out of the has a billion because everybody tells you they're going to take you to the Supreme Court. That's a whole thing. I'll go all the way to the Supreme Court. Apparently, no, you won't.
J. Aughenbaugh: No, you won't because the over 6,000 appeals that they received, they decided 60. I'm not a math man.
N. Rodgers: One percent. Wow.
J. Aughenbaugh: Yes.
N. Rodgers: Wait, is that even 1%?
J. Aughenbaugh: It's not even 1%.
N. Rodgers: It's 0.01%. Look at me. Trying to do math. This is so embarrassing.
J. Aughenbaugh: But, it's less than 1%, and that is a consistent trend line with the Roberts Court. They are hearing the fewest number of cases since the Civil War era. Again, remember, folks, the United States has changed significantly since the Civil War.
N. Rodgers: Not to be bitter, but the pay of the Supreme Court has gone up since the Civil War by quite a bit. They're getting paid more to do less.
J. Aughenbaugh: To do less. Yes.
N. Rodgers: I put to you that perhaps RIFs need to be considered for the Supreme Court. Can we save a lot of money if we just, anyway.
J. Aughenbaugh: Well, hey, the Chief Justice receives over $300,000 a year. His colleagues receive about $15,000 less.
N. Rodgers: Yes, that's a lot of money to only consider 60 cases. I'm just saying. You and I could do 60 cases in a month and then move on.
J. Aughenbaugh: You cut a couple of the justices and their clerks, and now you're talking about some serious money. No, I'm just kidding. But now, let's be very clear. There is the Trump effect which you mentioned a few moments ago. There have been over 300 lawsuits filed in federal courts challenging Trump administration second term policies. Nineteen of those cases have made it to the courts emergency or shadow docket. The Trump administration has faired somewhat well. His administration has won nine of them, lost three, one was a mixed verdict, and the other ones have still not been decided by the Supreme Court. Though at the time I comprised these statistics, since that time, we've had three additional Supreme Court shadow docket emergency docket rulings. All three have gone in favor of Trump. Sending deportees to South Sudan, the RIFs. Those are the two. We're going to get more.
N. Rodgers: Are you saying that some of those didn't go all the way to the Supremes?
J. Aughenbaugh: No, they've gone to the Supreme Court. The Supreme Court hasn't issued a decision yet. That's the thing about the court's emergency docket. Because it's not a normal case where they publicly announced when there's going to be oral arguments, written briefs, etc, these shadow docket cases may not even have oral arguments. They receive written briefs, but the Supreme Court could decide today, tomorrow, next month. It's entirely up to the court, and it's that lack of transparency that generates criticism about the court's shadow docket.
N. Rodgers: Hence the word shadow. As opposed to upfront under the sunlight docket. Which is harder to say.
J. Aughenbaugh: Then you throw in the liberal criticism that the Trump administration has a success ratio, again, please forgive the math. But if they're winning 12:3, whatever the case may be, hey, I will take that percentage if I was bringing cases to the Supreme Court.
N. Rodgers: For him, the wins way outnumber the losses. Why not? Why not roll the dice? Who's in the majority the most?
J. Aughenbaugh: Chief Justice John Roberts, 95%. He has been in the majority the most, each of the last three terms, followed by Brett Kavanaugh at 92%, and Coney Barrett at 89%.
N. Rodgers: Who's the crappiest?
J. Aughenbaugh: The justice who is in the majority of the least, Brown Jackson, 72%.
N. Rodgers: Seventy-two percent?
J. Aughenbaugh: Yes.
N. Rodgers: Good for her. She's a lone voice out there hollering in the wilderness. No.
J. Aughenbaugh: She is now occupying the position that was previously occupied by Sotomayor and before Sotomayor, Clarence Thomas. Yes.
N. Rodgers: That's interesting that the justices of color have tended to be on the outside yelling inward.
J. Aughenbaugh: Now, if a case was closely divided, and usually scholars label a case closely divided when the court's vote is 6:3 or 5:4, once again, John Roberts is in the majority the most in closely divided cases, slightly over 92%, followed by Kavanaugh at 89, and Coney Barrett at 82. In closely divided cases, the two justices who were in the majority the least, Elena Kagan and Sonia Sotomayor.
N. Rodgers: Not surprising with this court.
J. Aughenbaugh: Now, how divided was the court? This is where my rant about the media kicks in. The court was unanimous this term in 42% of all of its cases. This is slightly down compared to the last two years. Last year, it was 44%. The previous year was 50. If you add in 8:1 and 7:2 vote cases.
N. Rodgers: Or you just have one crappy justice who's like, no, ra, ra, ra.
J. Aughenbaugh: Or two.
N. Rodgers: Or two standing over in the corner together going, ra ra, ra.
J. Aughenbaugh: The majority is off their rocker, and only we know what is the correct answer. The percentage increases to 65%. Now, the media is reporting that the Roberts Court is increasingly fractious. I always like those nice geology terms. I would disagree.
N. Rodgers: If we could get 65% of, say, the political science department to agree on.
J. Aughenbaugh: Eight to one or 7:2, we would be like, hey, what's going on here. Who has slipped in what drug into our coffee? Why are we all getting along, damn it?
N. Rodgers: I'm not trying to call out political site. I'm just saying small groups of people are often divided down the middle, and that doesn't seem to be how the court is working. If 65% of the time they are coming together, for all intents and purposes. If you got a 7:2 or an 8:1, that's what in politics, we would call a mandate.
J. Aughenbaugh: My goodness, yes.
N. Rodgers: Eight to one and 7:2 is a mandate. If you're talking about the times that the court has a mandate where most of them agree on X thing, 65% is amazing. That's amazing to get that agreement level. Especially from people who are used to being in charge of themselves and their court because these are people who until this job, had jobs where they were in charge of whatever the job was.
J. Aughenbaugh: They think they're the smartest person in the room. Come on.
N. Rodgers: Which often they were. Now you've got, if they can come to some agreement 65% of the time, Roberts is pretty much doing its job. One could argue that that reflects well on him as a chief.
J. Aughenbaugh: Because, again, we're not talking about a room full of shrinking violets.
N. Rodgers: These are not wallflowers. You're like, we'll go along with whatever you want. I don't know that any of them have ever said that. I said any Supreme Court justice never.
J. Aughenbaugh: The day in era where we actually had one or two nose to the grindstone. We don't talk, we don't raise the stink justices, that's come and gone.
N. Rodgers: Even Thomas is talking pretty regularly now.
J. Aughenbaugh: Yes, he is. Now, another media narrative is that in closely divided cases, it's always the six conservatives versus the three liberals. Well, you may be surprised to find out that only 9% of the decided cases turned out the six conservatives versus the three liberals.
J. Aughenbaugh: Nine percent.
N. Rodgers: We are guilty of helping to skew that because our last episode, that's what we talked about the 6, 3s. But we didn't talk about the cases that they took the vast majority of cases they took that were not 6, 3.
J. Aughenbaugh: We actually had a handful of cases this term, where it was 6, 3, but it was like four conservatives and two liberals or five conservatives and one liberal or all three liberals, and then Coney Barrett, Kavanaugh and the Chief Justice. Again, to me, that's more fair to me.
N. Rodgers: It's a mix. The court's a mix. The media wants a simple 6, 3 because that's an easy thing to understand. Six conservatives, three liberals, that's how it's always going to be. That's the makeup of the court. You're like, but is it? It's not really.
J. Aughenbaugh: It follows the narrative that the court is a political body that can be understood as conservative versus liberal. That's not always the case.
N. Rodgers: The presidents have influence over the justices that they appoint, which is not the case, sometimes.
J. Aughenbaugh: If you think about, for instance, the three justices Trump put on the Supreme Court, Gorsuch, Kavanaugh and Coney Barrett. Now, do those three generally vote the same way? Yes. On the other hand, there is a significant difference between Gorsuch and then Kavanaugh and Coney Barrett. Think about the two justices that Barack Obama put on the court, Kagan and Sotomayor. Now, do they generally vote the same way? Yes. On the other hand, as we've previously talked, occasionally, Kagan will break off.
N. Rodgers: In yesterday's decision, Sotomayor. What I think that the media misses is that these people have developed their jurisprudence over years and years in courts, and they are not as easily predicted as you might think. Part of that has to do with their experience. Part of that has to do with their reading of the Constitution. Part of that has to do with the influence of their colleagues. Part of that has to do with age. We know that people tend to get slightly more conservative as they get older. They tend to get more incremental as they get older. Why don't we change things slower?
J. Aughenbaugh: Some of it is a particular case.
N. Rodgers: Right. This case touches on this thing that I really have feelings about in terms of its constitutionality.
J. Aughenbaugh: Listeners, Nia and I were talking off recording, and I went ahead and said, the cases that seem to animate Coney Barrett the most are civil procedure cases.
N. Rodgers: That's what she taught at Notre Dame.
J. Aughenbaugh: That's what she taught at Notre Dame. But in law schools, civil procedure is considered one of the most boring, dry topics.
N. Rodgers: The deadly class. Good luck surviving that. You may be bored to death.
J. Aughenbaugh: Most students avoid it like the plague once they graduate from law school. But she seems to be animated by these types of cases.
N. Rodgers: Once she wrote a book about it, I think.
J. Aughenbaugh: On the other hand, as we've talked about in previous summer of Scotus episodes, Neil Gorsuch gets animated about Native American tribal cases.
N. Rodgers: Because he's a Western judge. He came out of the Western system.
J. Aughenbaugh: On the other hand, he is, excuse the expression, a White dude. How would you go ahead and say, okay, Neil Gorsuch who was born and raised, by the way, in Washington, DC, his mum was the former director of the EPA. He went to private schools. He went to elite universities. On the other hand, he gets animated by these types of cases. But again, I understand, why the media does it, but I don't necessarily think it gives an accurate portrayal, what goes on on the Supreme Court.
N. Rodgers: I agree.
J. Aughenbaugh: We got some other statistics.
N. Rodgers: What is our extreme ideological splits? Like, who can we pretty much guarantee, not guarantee, but you know what I mean? Pretty much these are going to be the two on the left, and the two on the right.
J. Aughenbaugh: Which justices vote most similarly? On the right, Alito and Thomas, 97% of the time.
N. Rodgers: They are road buddies.
J. Aughenbaugh: I'm trying to think within my own department.
N. Rodgers: Who votes 97% of the time of the time.
J. Aughenbaugh: Nia, you're right. On the left, it's Sotomayor and Brown Jackson 94% of the time. Again, these are the two ideological extremes on the court. Now, let's talk about the lower courts and how well they fared at the Supreme Court. You have lower federal courts. By the way, the US Supreme Court took very few appeals of state Supreme Court decisions as past term. Almost the entirety of their docket were appeals of lower federal appeals courts.
N. Rodgers: Circuit courts. How many circuit courts are there?
J. Aughenbaugh: There are 12. Eleven have numbers, and then you have the DC Circuit Court of Appeals.
N. Rodgers: Eleven have numbers. I like that. Eleven have numbers, and then there's DC.
J. Aughenbaugh: Then there's DC. Now, the appellate court that generated the most business, the most review by the Supreme Court was the Fifth Circuit that covers the states of Texas, Louisiana and Mississippi. It's considered the most conservative.
N. Rodgers: I was going to say that's got to be a red circuit. Even those three states.
J. Aughenbaugh: Yes. Thirteen cases were reviewed by the Supreme Court, and the Supreme Court overturned 10 of their rulings.
N. Rodgers: Smackdown.
J. Aughenbaugh: But in terms of percentage, the appellate court that got completely smacked down was the Fourth Circuit. The Fourth Circuit covers is basically our home appellate court. We are recording at VCU in Richmond, Virginia. The Fourth Circuit covers Maryland, Virginia, the Carolinas and West Virginia. It is considered by most scholars to be the second most liberal appellate court in the United States.
N. Rodgers: The first one has got to be whatever includes California.
J. Aughenbaugh: That's the ninth.
N. Rodgers: That's got to be the most liberal. Ours is the second most liberal, the fourth. How many how many rulings did they take from us? How many cases?
J. Aughenbaugh: Eight, and all eight were overturned.
N. Rodgers: Double smackdown.
J. Aughenbaugh: Eight.
N. Rodgers: MMA, they'd be calling for an ambulance for you. You took a beating, sir. Let us get you an ambulance.
J. Aughenbaugh: At this point, we would be criticizing the judge in the fight, because they let it go on to one.
N. Rodgers: You see right. You let them get beat so badly.
J. Aughenbaugh: This was not a banner year for the appellate courts. Seventy-eight percent of their challenged rulings were overturned by the Supreme Court, including a number of prominent emergency shadow docket cases.
N. Rodgers: Don't you think that's in part because they have been overstepping their boundary?
J. Aughenbaugh: Yes.
N. Rodgers: We've been talking about this now for a few years that they have gotten outside their wheel always. Now the Supremes are like, no, you need to get back into your lane. You don't get the whole highway. You get the section that's marked off for you. Who wrote the most?
J. Aughenbaugh: The next two categories of statistics always fascinate me. The justice who wrote the most for the third year in a row, Clarence Thomas. He wrote the most majority opinions, seven, the most concurrences, 13, and the second most dissenting opinions, nine. He wrote nine total opinions. Think about that.
N. Rodgers: Only nine.
J. Aughenbaugh: They only decided 66 - 67 cases.
N. Rodgers: He wrote 45%.
J. Aughenbaugh: Yes.
N. Rodgers: He wrote something.
J. Aughenbaugh: He wrote something. Yes.
N. Rodgers: Wow. For a guy that never talks. That's a lot.
J. Aughenbaugh: We can go ahead and make fun of the fact that Clarence Thomas doesn't talk during oral arguments.
N. Rodgers: But he's clearly singing.
N. Rodgers: But yeah, he definitely has a voice. He has clearly adopted. What many Supreme Court justices have said for decades, which is, we speak with our opinions.
N. Rodgers: Yeah.
J. Aughenbaugh: Now, the justice who wrote the second most was Brown Jackson. She wrote the most dissenting opinions. She wrote 10, but she also wrote 24 opinions overall. Again I find this fascinating. Again, two justices of color, write the most.
J. Aughenbaugh: Now, you want to guess who wrote the fewest opinions. It's not even close. The chief.
N. Rodgers: Do you know? Really, is it Roberts?
J. Aughenbaugh: Roberts only wrote six opinions. He wrote six majority opinions. He wrote no concurrences and no dissents. Which begs the question? Are you that, burdened by the administrative duties of the chief justice? He is the chief administrative officer of the entire federal judiciary.
N. Rodgers: It is a big job. We're not saying it's not a big job, but also. You'd think maybe he wants his voice to be heard less. Maybe he wants the other justices to.
J. Aughenbaugh: This also might be characteristic of old chief justices. Chief Justice John Marshall hated when his court wrote concurring and dissenting opinions. He hardly ever wrote a concurrence or dissent.
N. Rodgers: I like the dissents.
J. Aughenbaugh: I know you do.
N. Rodgers: I like the dissents. They're some of my favorites. I like the concurrences because they're like, no, we got it right, but for all the wrong reasons, which I just think is hilarious. But I like the dissents the dissents are like, you know what you missed? You missed A, B, C, D. This is where your thinking is flawed.
J. Aughenbaugh: Usually get the better writing in the dissents because they don't have to worry about keeping a majority.
N. Rodgers: They get to just write for themselves, what their judicial philosophy is.
J. Aughenbaugh: Who wrote the fewest majority opinions was Elena Kagan. She only wrote four, which, as I put in our prep notes, how and when did she upset the chief?
N. Rodgers: No kidding. He assigns those. For listeners who don't remember.
J. Aughenbaugh: Yes.
N. Rodgers: If the Chief Justice is in the majority, which he often is, he assigns.
J. Aughenbaugh: The majority opinion.
N. Rodgers: The majority opinion.
J. Aughenbaugh: Remember, Roberts was in the majority 90 what? 95% of the time.
N. Rodgers: I think it was 92.6, but, he's assigning the vast majority of the opinions, and he's not giving them to Elena Kagan.
J. Aughenbaugh: Nia, I got a quiz for you. If the liberals were frequently in the minority, they were writing dissents. Their side was losing cases. What's the one area where they're winning on the Supreme Court?
N. Rodgers: Well, if I would guess from Sotomayor, I would say talking. As Sonia Sotomayor talks during, I think she works out a lot of her judicial philosophy through the questions, she's talking and thinking out loud is what she's doing when she's doing that in the cases. Is it her that's the most talkative?
J. Aughenbaugh: No, she's the second most talkative. The most talkative, by far, it's not even close is Brown Jackson.
N. Rodgers: She surpasses Sotomayor. Okay, that's saying something because, I'm not trying to be ugly here, but Sonia Sotomayor is known for talking.
J. Aughenbaugh: Brown Jackson has been on the Supreme Court a little less than three years. She has been the most talkative the last two years, and it's not even close. By the way listeners, there are actually scholars who count the words uttered by the justices during oral arguments. Brown Jackson spoke over 79,000 words in those roughly 60 cases where they heard oral arguments. Just do the math.
N. Rodgers: She's doing a similar thing. She's doing the thinking out loud. What I think is interesting is Justice Thomas has got to still be the lowest.
J. Aughenbaugh: He only spoke 11,000 words, followed by Roberts who only spoke 22,000.
N. Rodgers: We know that part of that is because Justice Thomas believes that his voices, he doesn't particularly care for his own voice. Is that not correct? Or his accent?
J. Aughenbaugh: He wrote in his memoir that one of the reasons why he doesn't talk stems from when he was a child. He went to a private school. His classmates made fun of his dialect.
N. Rodgers: There's a reason partly for that, carry through.
J. Aughenbaugh: He also believes, and he said this in a number of speeches because he's been asked, Justice Thomas, why do, speak so little during oral arguments? He said, "I actually like to hear what the lawyers representing the parties have to say. Unlike some of my colleagues, I don't necessarily care to hear my own voice."
N. Rodgers: Which is a nice slam about his colleagues. But it also, I think, goes back to the point of who wrote the most was him. He clearly works out his jurisprudence in writing.
J. Aughenbaugh: Writing.
N. Rodgers: He does that as a writing exercise, whereas some of them do it as a verbal exercise.
J. Aughenbaugh: You also got to remember, too, listeners that Clarence Thomas historically has been one of the most principled Supreme Court justices in our country's history.
N. Rodgers: He's pretty predictable.
J. Aughenbaugh: He doesn't like to compromise. He's not trying to persuade his colleagues. He just goes ahead and says, this is how I interpret the law or the Constitution. If you agree with me, fine. If you don't you can write separately. Or write differently. But if you are a justice and you're hoping to persuade one or two of your wavering colleagues during oral arguments, well, Clarence Thomas ain't going to do that. He's never done it. Now, he speaks more than he did probably the first half of his tenure on the court. What's fascinating is that really began to change during COVID. When the Supreme Court altered oral arguments so that now every justice gets an opportunity to speak before a justice can ask questions a second, third, fourth, fifth time. They do it in the order of seniority. John Roberts gets the first crack, and then it is Clarence Thomas.
J. Aughenbaugh: But he still doesn't talk nearly as much as most of his other colleagues. Let's get to some observations here. Now, I think by all accounts, this is a conservative court, where you will get disagreement is how conservative it is. I'm going to play devil's advocate here, and I will go ahead and argue that actually we have a Supreme Court that you could break up into blocks of three justices. You have the three consistently conservative, Thomas, Alito, and Gorsuch, you have the three consistently liberal: Brown Jackson, Sotomayor, and Kagan. Then you have what I call three moderate conservatives. They're not liberal. Let's be very clear. John Roberts is the median vote on the Supreme Court, and he votes with his conservative colleagues nearly 90% of the time. But he, Kavanaugh, and Coney Barrett can be persuaded to vote differently than Thomas, Alito, and Gorsuch. Again, this shows, if you will, how the three in the middle are more incrementalist, or in the case of John Roberts, as you pointed out in a number of podcast episodes, he's an institutionalist. He believes that when the court overturns well-established law or precedent, it hurts the court's institutional reputation.
N. Rodgers: It's a danger to the court.
J. Aughenbaugh: It's a danger to the court. Which then means the three liberals have a choice. You can sit off to the side and issue your dissents and scream and holler and be, as you like to say, cranky, grumpy.
N. Rodgers: Crabby.
J. Aughenbaugh: Yeah, crabby or you can do what Elena Kagan occasionally does, which is join the three more moderate conservatives, hope you pick off Gorsuch, or you bring in Sotomayor or Brown Jackson and now you have a majority that issues a very narrow incremental decision. Otherwise, if you're Brown Jackson and Sotomayor, you're going to be very frustrated for the remainder of your professional career.
N. Rodgers: You were saying that to me off recording, and I wanted to make a point of mentioning that before we jump into the cases that are coming up is now, Sotomayor is not a relatively young woman. She's up there in the pack, but Brown Jackson is a young woman, relative to the other ages on the court. She is going to spend either a lot of time being very angry and very frustrated, or she's going to have to learn how to do what Kagan is doing, which is while not giving up your principles, because nobody's saying that she should do that. Nobody's saying that she should give up her judicial principles. But we are saying that if she doesn't want to spend the next 30 years being angry on the court, she's going to have to figure out how to play the political game with them in the sense of how to.
J. Aughenbaugh: Be strategic.
N. Rodgers: Thank you. That's a better word is figuring out how to be strategic in when she lets her full judicial opinion force her out into a dissent or force her out and when she can find compromise.
J. Aughenbaugh: Because, you know, we talked about this in the last podcast episode, Nia. The verbal sparring between Brown Jackson and Coney Barrett in the Trump versus Casa nationwide injunction case led to Coney Barrett writing for the majority to directly call out Brown Jackson's dissent.
N. Rodgers: All that's doing is pushing Amy Coney Barrett into the arms of John Roberts, Brett Kavanaugh metaphorically, not physically, because everybody's happily married. But if she's trying to get Coney Barrett to be slightly offside with the Liberals, then she's going to have to stop saying, and you personally are evil and Satan, because that doesn't help her cause.
J. Aughenbaugh: Because when you go ahead and accuse your colleagues of supporting the Trump administration over the law, you are basically calling them out as being political hacks.
N. Rodgers: I think that she was saying something about being judicial kings, and you're like, easy.
J. Aughenbaugh: She accused Coney Barrett's majority opinion of creating an imperial president.
N. Rodgers: Thank you. Imperial.
J. Aughenbaugh: Which led Coney Barrett to say, well, Justice Brown Jackson's view would seemingly create an imperial court.
N. Rodgers: It's a girl fight.
J. Aughenbaugh: Coney Barrett was just like, I'm pretty sure the United States Constitution does not create an imperial judiciary. I was just like, yikes. It reminded me of the verbal battles between Scalia and O'Connor, where scholars went ahead and concluded that by the tail end of O'Connor's time on the court, any hopes that Scalia had of persuading O'Connor to join her more conservative colleagues was basically destroyed because he had called her out in so many concurring and dissenting opinions.
N. Rodgers: He had poisoned that pool.
J. Aughenbaugh: Yeah, he had poisoned the well.
N. Rodgers: People don't forget. The other thing is, there's none y'all. You got to live together for how long? You are in the cabin in the woods outside is going to kill you. You have to work together.
J. Aughenbaugh: It reminds me of the old Hitchcock movie Lifeboat. You're stuck on a lifeboat, with eight or nine other strangers, and if you act like a crabby SOB, the other seven or eight aren't going to lose too much sleep if you fall overboard.
N. Rodgers: They may not push you, but if you fall, they're probably going to let you go.
J. Aughenbaugh: Because hey, that's one last weighted body on a lifeboat. Let's talk about some upcoming cases.
N. Rodgers: Wait, I have a question for you. Because I think maybe what we should do is put our upcoming cases in maybe a short baby episode that comes after this one, because I want to ask you a question before we go, which is, are the Supremes going to get a vacation this year?
J. Aughenbaugh: We can talk about that.
N. Rodgers: Because I'm curious about whether the Supremes are going to have a summer. If we can talk about that in the next episode with our upcoming cases, then if that's okay with you, I would like to hear the answer to that question as well. Cool. Thanks, Aughie.
J. Aughenbaugh: Thank you, Nia. Again, listeners, we hope that you enjoyed our wrap-up episode. We're going to have one more episode for the Summer of Scotus.
N. Rodgers: In coming. Sneak preview.
J. Aughenbaugh: We're going to do some foreshadowing, if you will.
N. Rodgers: Or a movie trailer.
J. Aughenbaugh: Yes, a movie trailer.
N. Rodgers: Coming soon.
J. Aughenbaugh: The language of today, we're going to have an entire episode about trailers. These are not the trailers that are attached to pickup trucks or 18-wheelers. That was a really bad joke, and I can't believe we're ending the episode on.
N. Rodgers: A dad joke.
J. Aughenbaugh: What my daughter would say is Really, Dad? That's a terrible dad joke. Anyways, thanks, Nia.
N. Rodgers: Thank you, Aughie.
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