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Author Topic: Examples of unusual divides on the Supreme Court  (Read 1720 times)
DC Al Fine
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« on: February 04, 2017, 11:00:53 am »
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In the Gorsuch thread, someone mentioned Hollingsworth v. Perry, a gay rights case, where both Scalia and Sotomayor voted the opposite of what one would normally expect.  Typically one would expect 5-4 ruling to go "Scalia, Thomas, Roberts, Alito" v "Ginsburg, Kagan, Breyer, Sotomayor" with Kennedy the swing vote. Likewise, a 6-3 or 7-2 case would have the most conservative/liberal justices opposing everyone else.

What are some good example of Supreme Court cases, where the opinions don't fall along 'partisan' lines?
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« Reply #1 on: February 04, 2017, 12:36:48 pm »
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National Federation of Independent Business v. Sebelius famously had Roberts joining the liberals as the swing vote instead of Kennedy.

City of Boerne v. Flores was a case from the late nineties dealing with the original, federal RFRA where Kennedy wrote the decision for a majority also including Rehnquist, Stevens, Thomas, Ginsburg, and Scalia; O'Connor, Souter, and Breyer dissented.
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« Reply #2 on: February 04, 2017, 03:08:18 pm »
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National Federation of Independent Business v. Sebelius famously had Roberts joining the liberals as the swing vote instead of Kennedy.



I dont mean to go off-topic but has anyone figured out why Roberts voted to uphold Obamacare?

BUT...

Texas vs Johnson, aka the flag burning case. Scalia sided with the liberal majority while Stevens and White dissented
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« Reply #3 on: February 04, 2017, 04:27:25 pm »

National Federation of Independent Business v. Sebelius famously had Roberts joining the liberals as the swing vote instead of Kennedy.

I dont mean to go off-topic but has anyone figured out why Roberts voted to uphold Obamacare?
I've always assumed that Roberts strain a legal gnat to justify upholding the ACA so as to avoid getting the Court embroiled in the politics of the ACA.
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« Reply #4 on: February 04, 2017, 07:11:26 pm »
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National Federation of Independent Business v. Sebelius famously had Roberts joining the liberals as the swing vote instead of Kennedy.

I dont mean to go off-topic but has anyone figured out why Roberts voted to uphold Obamacare?
I've always assumed that Roberts strain a legal gnat to justify upholding the ACA so as to avoid getting the Court embroiled in the politics of the ACA.

I disagree. Roberts got the law exactly right on this one. Yes, not getting out of bed in the morning is not an engagement in interstate commerce, but the mandate fee really is a tax for Constitutional purposes (the economic effect is precisely the same as a tax), even if it is not if Congress so chooses for statutory purposes, to avoid certain statutory procedural hurdles. It really is a quite brilliant decision.
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« Reply #5 on: February 05, 2017, 02:05:39 am »
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Entertainment Merchants Assn. v. Brown involves free speech as applied to bans on selling video games to minors. Both Clarence Thomas and Stephen Breyer dissented from the majority opinion overturning the ban. Thomas did so because children didn't have rights in the 1600s and Breyer did so because only speech he thinks is valuable is speech.
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« Reply #6 on: February 05, 2017, 07:28:04 am »
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Walker v. Texas Division, Sons of Confederate Veterans:  Thomas joined with Breyer, Sotomayor, Kagan, and Ginsburg, ruling that license plates are government speech.
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« Reply #7 on: February 05, 2017, 02:09:08 pm »
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Entertainment Merchants Assn. v. Brown involves free speech as applied to bans on selling video games to minors. Both Clarence Thomas and Stephen Breyer dissented from the majority opinion overturning the ban. Thomas did so because children didn't have rights in the 1600s and Breyer did so because only speech he thinks is valuable is speech.

I'm firmly on the liberal side of the spectrum, but I think Scalia's majority opinion in Brown v. EMA is one of the absolute best. The Alito/Roberts concurrence was barely on the correct side in that opinion.

Kyllo v. United States strikes me as a rather unusual divide during the Rehnquist Court. The majority (Scalia; with Souter, Thomas, Ginsburg, and Breyer) ruled that thermal imaging constitutes a Fourth Amendment search over the dissent (Stevens; with Rehnquist, O'Connor, and Kennedy).

I can't think of a lot off hand, but there are a number of cases I can recall where Scalia and/or Thomas jumped to the so-called liberal side while Breyer and/or Kennedy would be on the so-called conservative side (the former would generally win). Basically, where Justice Scalia would rule for criminal defendants with the majority of the liberals (and maybe Justice Thomas), Justice Breyer could often vote the other way. Unfortunately, if Trump gets his way, we're likely to get someone that's reflexively pro-police and pro-executive. Scalia may have been very conservative, but he wasn't a slave to right-wing authoritarian ideology.
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« Reply #8 on: February 05, 2017, 03:06:00 pm »
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Granville v. Troxel.
The case was about whether a parent has a constitutional right to control who else has visitation rights to their child. The Court divided six to three; Rehnquist, O'Connor, White, Ginsburg, Breyer, and Souter versus Stevens, Scalia, and Kennedy.
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« Reply #9 on: February 05, 2017, 03:13:50 pm »
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National Federation of Independent Business v. Sebelius famously had Roberts joining the liberals as the swing vote instead of Kennedy.

I dont mean to go off-topic but has anyone figured out why Roberts voted to uphold Obamacare?
I've always assumed that Roberts strain a legal gnat to justify upholding the ACA so as to avoid getting the Court embroiled in the politics of the ACA.

I disagree. Roberts got the law exactly right on this one. Yes, not getting out of bed in the morning is not an engagement in interstate commerce, but the mandate fee really is a tax for Constitutional purposes (the economic effect is precisely the same as a tax), even if it is not if Congress so chooses for statutory purposes, to avoid certain statutory procedural hurdles. It really is a quite brilliant decision.

I wish I were more familiar with all of the details and nuances of the case, but my instincts are that Roberts had the right conclusion but the wrong explanation of the Constitution. It makes no sense to me to call the confiscation of money from a person who did not comply with a law a "tax." If a law requires you to do a certain something (get health care insurance) and penalizes you for not doing it, then that's a fine, not a tax. Taxes are what you have to pay even if you are not accused of doing anything against the law. I think the Affordable Care Act should have been upheld, in its entirety, under the Commerce Clause.
« Last Edit: February 12, 2017, 02:40:36 pm by MarkD »Logged

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States should have clear guidelines what laws they cannot pass, and the federal courts should have far less discretion in choosing what laws to strike down. Take away from the federal courts the power to define liberty and the power to define equality. Those are legislative powers and should be in the hands of legislators. Rewrite Section 1 of the 14th to make its meaning narrower and clearer.
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« Reply #10 on: February 05, 2017, 03:15:32 pm »
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Entertainment Merchants Assn. v. Brown involves free speech as applied to bans on selling video games to minors. Both Clarence Thomas and Stephen Breyer dissented from the majority opinion overturning the ban. Thomas did so because children didn't have rights in the 1600s and Breyer did so because only speech he thinks is valuable is speech.

I'm firmly on the liberal side of the spectrum, but I think Scalia's majority opinion in Brown v. EMA is one of the absolute best. The Alito/Roberts concurrence was barely on the correct side in that opinion.

Kyllo v. United States strikes me as a rather unusual divide during the Rehnquist Court. The majority (Scalia; with Souter, Thomas, Ginsburg, and Breyer) ruled that thermal imaging constitutes a Fourth Amendment search over the dissent (Stevens; with Rehnquist, O'Connor, and Kennedy).

I can't think of a lot off hand, but there are a number of cases I can recall where Scalia and/or Thomas jumped to the so-called liberal side while Breyer and/or Kennedy would be on the so-called conservative side (the former would generally win). Basically, where Justice Scalia would rule for criminal defendants with the majority of the liberals (and maybe Justice Thomas), Justice Breyer could often vote the other way. Unfortunately, if Trump gets his way, we're likely to get someone that's reflexively pro-police and pro-executive. Scalia may have been very conservative, but he wasn't a slave to right-wing authoritarian ideology.

Gorsuch actually has a reputation for being relatively anti-executive. We'll see if that holds up.
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« Reply #11 on: July 18, 2017, 11:11:03 pm »
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Here's another one: Adoptive Couple v. Baby Girl - where the 5-4 decision broke down as follows:

Conservatives: 3 Majority, 1 Dissent
Liberals: 1 Majority, 3 Dissent
Moderate: 1 Majority
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« Reply #12 on: July 22, 2017, 02:38:13 am »
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In cases involving the confrontation clause Scalia and Thomas nearly always ruled in favour of defendants while Breyer and Kennedy ruled for the state
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« Reply #13 on: July 23, 2017, 05:16:04 pm »
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The split in Hamdi is an odd one. Majority was O'Connor, joined by Rehnquist, Kennedy, Breyer. Scalia and Stevens joined in a dissent and Thomas individually dissented.
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« Reply #14 on: August 09, 2017, 12:29:58 am »
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Came here to say Kyllo, but it seems someone beat me to it.

I remember back in law school some of my more liberal classmates thought that opinion was sorta silly.  I think mostly because of the phrase "the lady of the house takes her daily sauna and bath."  And because they just didn't like Scalia generally.

I always thought the opinion was rather solid, though.
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« Reply #15 on: August 09, 2017, 03:40:27 pm »
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« Reply #16 on: August 09, 2017, 04:19:37 pm »
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Florida v. Jardines

Scalia, joined Thomas, Ginsburg, Kagan, and Sotomayor in the five member majority declaring that a dog smell in a house's front pouch is an unconstitutional search.

Alito dissented, joined by Kennedy, Roberts, and Breyer.
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« Reply #17 on: August 14, 2017, 02:20:51 am »
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Gorsuch actually has a reputation for being relatively anti-executive. We'll see if that holds up.

It hasn't been long, but I'm afraid your optimism is unfounded. I think he's another Alito or even worse. I don't think you'll hear many on the left say this, but right now, I wish Justice Scalia was still on the Court.

Florida v. Jardines

Scalia, joined Thomas, Ginsburg, Kagan, and Sotomayor in the five member majority declaring that a dog smell in a house's front pouch is an unconstitutional search.

Alito dissented, joined by Kennedy, Roberts, and Breyer.

That breakdown isn't as strange as you think it might be. It's similar to the Kyllo decision and the correct decision overall. I think decisions like those are over for the time being. I think Gorsuch is far closer to Alito than Scalia, unfortunately.
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« Reply #18 on: August 14, 2017, 02:11:35 pm »
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Florida v. Jardines

Scalia, joined Thomas, Ginsburg, Kagan, and Sotomayor in the five member majority declaring that a dog smell in a house's front pouch is an unconstitutional search.

Alito dissented, joined by Kennedy, Roberts, and Breyer.

This is pretty common. Breyer trusts government, including the police, more than probably any other justice. Whereas Scalia and Thomas were/are occasionally (and sometimes inconsistently, true, especially in the case of Scalia) skeptical of government power.
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