Friday, July 16, 2010

Alternative Vote Counting

As an aside in a blog post about whether Justice Kennedy's influence is waning, Linda Greenhouse makes a rather bizarre assertion that tallying supreme court votes is an art rather than a science:
I should note here that while Supreme Court statistics are widely available on the Internet, including from the estimable Scotusblog site, the numbers I use are my own, and may not always agree with others’. There are a surprising number of judgment calls that go into Supreme Court vote-counting, such as how to count a concurring opinion that agrees with the particular outcome — as Chief Justice Roberts did in a case striking down life sentences without parole for juvenile offenders convicted of crimes other than murder — while rejecting the rationale that the majority will apply in future cases. After some pondering, I decided to count the chief justice’s vote in that case, Graham v. Florida, as a dissent, and to consider Justice Kennedy’s majority opinion as a 5-to-4 rather than 6-to-3 win for the court’s liberal bloc. I also count the term’s big patent case, Bilski v. Kappos, as 5- to-4 for its splintered reasoning, although as a technical matter the judgment was 9-to-0.

To me, Greenhouse's method seems designed to maximize the appearance of ideological division. For example, Greenhouse's decision to count Chief Justice Roberts' concurrence in Graham v. Florida as a dissent puts him in the same camp as Thomas, Scalia, and Alito in that case -- even though he disagreed with both the reasoning of Thomas's dissent and the outcome it demanded. On the other hand, although Roberts disagreed with the majority that a new categorical rule needed to be stated, he at least agreed with its result. I see no justification for counting Roberts's concurrence as a dissent. I think Greenhouse just wants to inflate the number of "ideological" 5-4 cases, probably because it dovetails with popular misconceptions about the supreme court. Indeed, one could argue that the creation and propagation of these misconceptions are Greenhouse's life's work.

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