Advisory Opinions - Revisiting 3-3-3

Episode Date: September 12, 2024

Adam Feldman of Empirical SCOTUSand Optimized Legal Consulting joins Sarah and David to discuss the concept of a 3-3-3 Supreme Court and the challenges of measuring ideology. The Agenda: —The role of Chief Justice John Roberts —Similarities and differences between political and judicial conservatism —The jurisprudence of Justice Amy Comey Barrett —The prevalence of unanimous decisions Show Notes: —Adam Liptak's writeup in the New York Times —Feldman’s 2023 stat review Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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and get going with our step-by-step study support. Your weekend will thank you. Small steps today means big wins tomorrow. With Chegg, subscribe today. You got this. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And as promised, David,

we have a special guest for this episode. Adam Feldman of Empirical SCOTUS from Optimized Legal Consulting is here to join us and break down some of the trends and statistics and all of that. Maybe throw some shade on the 333 court, which I'm super pumped about. And where we'll start, Adam, welcome to the pod. Oh, thanks so much for having me. But you just published Which Justice Writes the Most Important Opinions, which sounds like a really impossible task to put one's finger on. But you did.

You have fingers all over it. I appreciate it. Yeah, so it is, in some sense, impossible to do because everybody's definition of importance is going to be a little bit different. So I have to give the caveat that I'm trying to capture it with a bunch of different variables. And if I can, and this is kind of a general thing that I'm looking for in my studies, if I can find a bunch of different measures converging at the same thing, that tends to show that I'm looking in the right direction.

If I can come up with a bunch of different ways to think of importance, and I did in this article, and they all showed the same thing, which was that Chief Justice Roberts writes the most important opinions, and that kind of passes the smell test. It's something that in observing some of the opinions he writes, you know, this past term, Trump versus United States, and so he seems to capture those, and the measures show the same thing. So whether it's by the length of the opinions or the number of amicus briefs that are filed

or the number of separate opinions that are filed in the cases that he writes the majority opinions for, they all point to this. And so, yeah, on the one hand, it's impossible to say that the most important means one thing. All of these measures of importance seem to push in the same direction. So at least I can make the inference

that it's possible that one could see that he writes the most important opinions. I feel like there was this time, David, where the chief justice was the swing vote before Barrett joined the court when Ruth Bader Ginsburg was still on the court. And there was just no question who the most important justice was

because by any metric you could possibly think of, it's the chief justice. Then after Barrett joined, I think we all just quickly jumped to this idea that Kavanaugh was the swing vote. He was the median justice, the most important one to reach. And if you look at the sort of trends over time

of who is most likely to be in the majority, it's still Kavanaugh, although the chief edged him out this term by I think one percentage point, right, Adam? Yeah. But if you look at these other measures that you were looking at, and if you look at sort of overall the powers of the chief in general, I don't know, Adam, is it fair to say that

even though he's not the swing vote, he's the second most swing vote-y, and there's all these other things that come with being chief, for instance, assigning opinions that we've talked about before, and all these metrics that you've talked about, about the opinions themselves, should we maybe be talking less about BK

and more about his chiefiness, the chief? Well, if we think that there's stuff also going on behind the scenes that the chief justice does, and those things are important, and you mentioned one of those, assigning opinions. The other important thing is leading conferences, and we have no idea really what goes on behind closed doors. But it seems like the chief is trying to pull the kind of sides of the court together, the left and the right. And so, yeah, I think that he's playing

the most important role on the court. He's authoring some of the most important opinions. And there is no clear swing vote right now. I don't think that we can say that if it's Kavanaugh or the chief. I mean, one of the things that I wrote before and you guys have probably picked up on is that, of course, such is the swing in particular sets of cases. And so there is no palpable swing in the same way that Kennedy was.

I don't even think the chief really played that role that long, if it was. It was only between when Kennedy retired and when Barrett joined the court. So for those few years, I think he was even feeling out what that role would look like. And so, you know, I don't think there's been a true swing since Kennedy. And so Roberts kind of filled the role of pulling the court together and writing some of these really important decisions. So you know, I'm fascinated by this discussion, but I can't help but think we're just delaying

the main event right now, which the main event is how are we going to talk? We need to talk about the 333 construct. That's what I was so excited about this conversation to talk about 333. And so we're kind of doing a David, you take a bite of your dessert in the middle of your meal, don't you? Oh, of course. Absolutely. If it's there already, I mean, you gotta mix it up.

You know like when you're at one of those conferences and they put the dessert already on the table before anything else has arrived. And so like your salad's there and the dessert's right in front of you. And then your main course comes and the dessert's right in front of you. That is miserable.

True story, Sarah. Ironic you brought this up just yesterday. I was eating lunch before I taught my class at Lipscomb and I started with the double cheeseburger. Then I went to the apple pie. This is all from McDonald's, of course. And then I finished with the fries. So I literally did the dessert right in the middle.

But yeah, let's at least, you know, maybe edge towards getting into this. Man, I think actually talking about the Chief Justice is an interesting launching point for this. And it's, do you see the Chief Justice as sort of having a particular coalition on the court as having allies that stand out more to you than others. And we can kind of use that maybe to transition

into that 333 discussion. Sure. So something I wrote about fairly recently was the similarity in votes between the Chief Justice and Kavanaugh. Sarah, you just mentioned about their frequencies and the majorities, right? Roberts was just over 96%. Kavanaugh was around 95% this past term. So they're almost in the

majority across all cases and even more so across the most important cases. And so they tend to share these votes in the majority. Barrett's not far behind at around 91%. And this is, you know, they've been within these ranges since Barrett joined the court. So we've seen some consistency there. So in that sense, I think we could say that there's some coalition there, that they tend to share the same votes in cases, and they tend to be in the majority. By virtue of that, I think they all kind of act as that swing vote. I almost see that middle of the court as the swing because they're often, if not always, in the majority, and that affects the decisions in any closely divided case.

Now, in terms of jurisprudence, I think we see some deviations. We're seeing more concurrences by Barrett and by Kavanaugh. Barrett's tend to, this past term especially, got the most coverage, I think, because she expressed some different views from some of her conservative colleagues on the court. But, you know, this is where I think

there are some complexities about whether it's a 3-3-3 court and how we define a 3-3-3 court. And so, you know, I think, and I was mentioning this before, that there is a smell test, right? And it does seem like they vote together. I mean, it doesn't seem they do vote together. And it seems like there's some sort of coalition.

But what binds them, I think, is the hard thing to get at. What it is that attaches them together. And this is why I think it's difficult to try to quantify a 3-3-3 court and those three in the middle by some characteristic aside from the fact that they agree and agree in the majority very frequently. Okay, but I want you to really attack the concept of the 3-3-33 court and tell me why I'm

wrong. Like, be more, be meaner. You know, I'm a teacher as well. You know, I like to, you know, I like to educate. And so, you know, I did, I played the litigator role for several years. I got away from that with intention. And so, yeah, it might not be totally in my nature. Now, if I was critiquing it like an academic paper,

I would say a few things. One, I think this idea is really fraught for an academic paper where you can kind of break it down and have clear methodology that somebody could follow. And I think in reading the article, that was the toughest thing for me to really grasp, is that how does this methodology show what it's purported to show?

Can the claims be made based on that? And while I think there are elements that show there is a 333 court, I had a hard time, I think, accepting the things about it that the claims are being made. First off, the institutionalist pool. I think labeling that as an axis, while it makes sense, I don't see the level of institutionalism as kind of the same throughout the three justices. I think it's tough to make a claim about institutionalism when you have certain justices in the majority most frequently. That's to say, how do we know that the other justices aren't necessarily equally institutionalist minded, they just

don't have the power to make those things happen. So you could say that like, you know, and this is just a hypothetical to throw out, you could say that potentially the justices on the left, right, they might be entirely institutionally minded, but because they don't have the power to make those things happen, you know, they aren't described as the most institutionalist. So, I guess, conceptually, that was a little bit hard to follow. This goes down to quantitative methodology so we can get down into the nitty-gritty.

But the clusters of the 333 seemed very close together. And you see those three in the middle, three on the left, three on the right. I think it's hard to say that they jam-packed that closely together, aside from this single-value decomposition that's used to create that framework. decomposition that's used to create that framework. And the way that those things work is by taking data and showing where the clusters are based on the data. But it doesn't give any insight into what the concepts behind the data are.

So we have to supply them as the researchers. And in terms of institutionally minded and really in terms of ideology, I think it's tricky to do that. If I want to go across the horizontal axis, one of the things that I found difficult in studies that try to really quantitatively observe ideology is, and this might be kind of interesting for a general discussion, is like how do we know based on these methods truly that it measures political ideology, right? We come up with these notions of conservative versus liberal, but you're kind of capturing

the same thing or similar to what Martin and Quinn do. And that's in political science measures of ideology, which is characterize something along the left, right axis as liberal and conservative, where what we're really measuring is how similar justices vote to one another. So, you know, and one of the things I think you rightly mentioned in the article was that, you know,

by some definitions, Korsac is really conservative, but you can kind of look at him in other veins, you know, in specific issue areas, some call him like a classic liberalist. So, you know, there are other ways to kind of characterize the justices. And so, you know, I think my biggest qualm with looking at it is really how you label the axes and then how close the justices are to one another. And is it really showing and capturing this proximity

or is it some type of artifact from the alignment data? Okay, that was really helpful. You did miss some of the invective that I was hoping for. That's stupid, it's insane, bonkers town, but it was closer to what I was looking for. Well, you wanted him to begin like, Sarah, you're high on your own supply here. Sarah, you ignorant slut.

No, no, no. Well, we don't need you that far. So, you know, I think it's right in the respect that, you know, you're on to something there that seems to exist. But how we describe what exists there and how we measure that, I think we're still working in that direction. So, the hypothesis, I think, is right on. But the verification of the hypothesis, I think, you know, we need to still work on and as, you know, researcher as

a researcher in the field, and as researchers in the field, I think that's, you know, what we aim to show somebody comes up with an idea, a concept, and then other people build on that to try to see where it's right, see where it's wrong and push it further in the right direction. I'm not going back to university to be your friend. I'm going so further in the right direction. savings, not whatever you think university is for. Get Uber One for students, a membership to save on Uber and Uber Eats. With deals this good, everyone wants to be a student. Join for just $4.99 a month.

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I'm the national correspondent for The Dispatch and author of the Wanderland newsletter. We cover a little bit of politics in Wanderland, but mainly we try to get beyond the candidate and horse race stuff into the issues that we think we'll still be talking about after the selection and after the next one. I believe that politics is supposed to serve the well-lived life, not the other way around. We do a little bit of language, a little bit of current affairs, a little bit of culture.

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click on newsletters, and see to it that you're signed up for Wonderland. So you get it in your email box every week. for Wonderland so you can get it in your email box every week. You know, you raise something, Adam, that is really interesting, and that is what is conservatism in this context? Because what we are seeing is a diversion between political conservatism and legal conservatism, especially judicial conservatism, because the vast majority of your judicial conservatives are classical liberals, and now the large majority

of your conservative political energy is populist, which is different. It's very different. It's a different temperament, different ideology, different approach. And so how much can you kind of... How much is it possible in an empirical environment And so how much can you kind of, how much is it possible in an empirical environment

to make these sort of subjective ideological determinations? Yeah, I mean, the measures that are followed out there that are used in the most studies are looking at something similar to what the 333-4 article looked at, which is voting similarity. But when we label the axis as conservative and liberal, what we're really doing is picking a justice

that we think is most conservative and the justice that we think is most liberal, not because of anything that they necessarily do, but because of something that we see in them. And so we're really saying that the justices that are most like Thomas, let's say, are the most conservative and the justices that are, we could say, most like Justice Sotomayor are the most liberal. But it's not actually defined based on what they're doing in terms of something that we're

measuring from them, as much as it's something that seems right to us, and so we're capturing similarities. There are other possible ways to do this, like looking at the language that they use, but even that gets tricky because they're assigned specific opinions when they're writing the majority opinions, and so there's specific language that goes along with that. So maybe in a large sample, all of this stuff gets washed out, and we could use language as a gauge. But I think it's tricky, and it's especially tricky

when we're measuring similarity in voting and not based on something that they're actually doing that makes them seem more conservative or more liberal. So I was reading Adam Liptak's write-up in the New York Times and he cites to an analysis by Lee Epstein and Andrew Martin from Washington University in St. Louis, and sorry, Michael Nelson from Penn State. Didn't mean to leave you out, Michael. And they're charting the justices along some other lines as well. So at one point, they have a chart that shows some of the current justices are among the most conservative and most liberal in recent history.

And this chart shows that of the five most liberal justices to sit on the court since 1937, two are currently on the court, Sotomayor and Jackson, and of the four most conservative justices to sit on the Supreme Court since 1937, two are currently on the Supreme Court, Justice Alito and Thomas. I'm curious if you agree with this analysis, and I'm also curious if you do, what explanation you have for why the Supreme Court is looking like Congress when you see those charts of Congress sort of moving out to the polarized edges? Why you think that would happen at the Supreme Court as well with that lagging?

Yeah. So, you know, to be totally transparent, I've worked with Lee. I worked on the Supreme Court database, which, you know, we developed. I know Andrew, and I'm very familiar with the metrics that they develop. I think there are some drawbacks to using them and drawbacks to making comparisons across core errors. Now, first of all, the measure itself that they use is revolutionary because it allows for those comparisons.

How do we compare apples to apples across different court eras? One way is to say that there's been at least one justice who hasn't shifted from the court in any given year. So you have at least one bridging justice. And so you can say, OK, that justice was on the court between this era and this era, so we can make some kind of comparison between their voting 10 years before and then 10 years later.

A justice like Thomas has been on the court for so long that if he's somewhat consistent, we might be able to measure other justices according to him, even if there's been a lot of turn-off around the court. So I think it really pushes the discipline forward in that respect. But how do we say that, you know, a justice is the most liberal and most conservative across court eras? I think that's a very tricky claim to make because the cases are different, right? How do we say somebody is conservative in the 30s and 40s in the same vein that somebody's

conservative now? The cases they were hearing were totally different. They were mostly hearing cases on mandatory jurisdiction back then, so they had very little say in the cases that they hear. Since 88, where Congress passed the most recent act that gave the justices almost full discretion over their docket. The justices decide which cases they take now. So to say that the justices now are as liberal or conservative as they were half a century

or more ago, I think that's very difficult to make. And I'm not sure that the data actually show that. But it's interesting because, kind of similar to the 333 court article, it gets people to think about these things and then say where they think they're right and where they think they're wrong. And so it pushes the research forward. But it is difficult to say these things, especially

with confidence that they actually mean what people are saying. Now, David, back to the other point you were making about looking at ideology in the court as something similar to what exists in Congress, I think that's something that the studies intend to show. And you have to remember, these are by political scientists, where measuring separation of powers

is really the gold standard in political science studies. And so another measure that Lee and Andrew developed looks across Congress and the Supreme Court to create a measurement that tries to put them on the same axis. So to say that the Supreme Court is this much more literal or more conservative than Congress or than particular members of Congress or even the courts of appeals. So I think it is with intention that it looks similar, but it's even trickier to actually say that you can apply the same train of thought to

what it means to be liberal and conservative in Congress as you can with the Supreme Court. So it's with intention, but is it really showing that? I think that there's at least a good question there. Yeah, it's an interesting question to ask. Was it liberal or conservative when the Supreme Court struck down the Trump administration bump stock ban? Yeah. So you have the Trump administration, a quote-unquote conservative administration enacting a measure that is then struck down by the quote-unquote conservative Supreme Court, right, along ideological

lines, but it becomes, how does something like that rank? And I think we'll, if there is another Trump term, I would fully expect to see more situations like that. Or is it conservative or liberal if the Supreme Court strikes down the independent state legislature theory or rejects the bulk of the independent state legislature theory when that's advanced primarily by MAGA. But again it

was this one it was by you know quote bipartisan. Right. It does raise a lot of interesting questions I think about judging this going forward. Yeah. Even take Rahimi. The you know Supreme Court upheld 922 G a criminal statute that sounds conservative, right? Against a criminal like right that's like very code order Yeah, but we think of it as a liberal decision because it had Second Amendment Vibes so I think you're raising two really interesting points there One is can we code cases on a binary? Are the outcomes liberal or conservative? Most cases seem like they're on some kind of spectrum. That complicates things for researchers

because it's much easier to look at something as black or white and not as something that has shades of gray in it. That's one thing. Rahimi, I thought, was particularly interesting. I think there's some explanation for this. but the fact that you had Thomas descent as the lone dissenter in that case, I found particularly interesting because following Bruin, which was a case that was decided along ideological lines, you have Thomas really going back

to this same methodology in his dissent, and nobody joined him. So, you know, I think in terms of thinking through ideology and how, you know, we look at that case, that complicates it even further because, you know, if there was something that was truly conservative about the dissent in that case, then we might expect at least Alito to dissent along with him or dissent separately, but also dissent in that case, then we might expect at least Alito to dissent along with them or dissent separately, but also dissent in that case. So that really seems like one of these cases that has this middle feature to it, where there's some aspects that are conservative, some that are liberal.

So putting it on that liberal or conservative scale is a really tricky and complicated thing to do. So one of the things that you mentioned earlier in the conversation, which I'm also very interested in it, there's so many things I'm interested in talking to you about. But the next one is, you talked very briefly about the sort of the end of the last term where there was a lot of commentary around Amy Coney Barrett

that, wait, is she something, someone different in some material ways from the other five Republican appointees? There was a burst of commentary around the Amy Coney Barrett independence thesis. What are the numbers telling you about that? Is this something that's more of a qualitative analysis? In other words, there are just very specific things that she has said that seem to indicate a degree of independence, but how much is there any quantitative evidence for the Amy Coney Barrett independence thesis?

Yeah. So I think it's minimally quantitative and mostly qualitative. When we look at her decision-making, right? And I mentioned this earlier, she's in the majority, not quite as frequently as Robertson Kavanaugh, but pretty close, and she's been consistently at that same point. We see her concurrences bump up since 2020, and I think that shows some level of difference because although she's agreeing with the majority outcome, she's expressing her own brand of jurisprudence. My friend Josh Blackman, I think, really made an interesting point.

Josh and I agree on some things, disagree on others, but I think he always writes things that are thought provocative. He wrote that she's the justice, especially of Trump's appointees, that's hardest to peg down. And that's because she's really developing her theories on the court in real time and that we're seeing that. And I think that there's truth to that.

Truth in Trump versus Anderson, where she had her own separate concurrence that kind of aligned with the concurrence from the more liberal justices that obviously was aligned with the majority vote, majority outcome, but expressed some different sentiments. We saw in Vidal versus Elster concurrence that kind of differed with Thomas's view in the case. And so we've seen in these instances, her say things that are qualitatively different than some of her conservative colleagues.

We've seen these concurrences kick up and we've seen her in play in these divided cases where she has sided a little bit more with the liberals than she had in the past. So we're seeing some of these nuances. There's another theory in judicial politics and the political science literature, and it's called the ideological drift. This notion that you have mainly justices starting out more conservative and moving in the more liberal direction,

however we define liberal and conservative. And I would say of the justices that are on the court right now, she's probably, in at least my view, the justice that's most likely to drift a little bit closer to the liberal colleagues on the court than the other justices and the other two that, you know, are possibly in this bracket are the other two of the three middle justices, Kavanaugh and Roberts. But I think we're seeing signs, but it's really too early to draw a confident inference based on those.

All right. I want to move to some other trends on the court and just give you sort of a grab bag to pick what's interesting, what's affecting what. The number of merits cases, the Supreme Court hearing, dropping, it's been dropping, continues to drop. How quickly it's dropped has changed, but that's about it, the rate of drop. The number of concurrences, going up, up, up, up. So one could say that

justices are writing the same as ever. Justice Kagan noted that their emergency dockets increasing, so she feels like they're working the same amount. The number of amicus briefs in some of these cases seems to be increasing as well. What sort of that overall workload trend that you look at? What do you find interesting? What's not interesting? overall workload trend that you look at? What do you find interesting? What's not interesting? Wow. There are so many different things that you just threw out there. I'm going to try to get to them in some sort of order that you threw them out. So we can start with the number of opinions and kind of work our way down. So yes, the court seems path dependent

in terms of the opinions, the number of cases they hear on oral argument each term. And so what I mean by that is that there was a trend upwards in the number of cases they heard from around the 50s through the mid 80s. And then there was this act in 88. And since then, there's been a decline. And the decline, it's kind of in fits and spurts.

If you look at it, it's on a downward trend. There's been some uptick and mostly downward movement. I think that was the court seeing that, feeling out this discretionary jurisdiction, how many cases they needed to hear and maybe how few they can get away with hearing. But then we had COVID and that was this unexpected blip on the radar. And that was the most recent big drop.

We went from close to 70 opinions a term to under 60. And since then, it's hovered around 60, the last few terms. So I see these downward movements since the late 80s and very little movement upwards. And so that tells me that the court just doesn't adjust that much in the upward direction, especially since Robert joined the court. I almost think about this like a metaphor from gas prices.

They go up, they go up, but there's very seldomly a downward shift. We're never going to see those dollar, dollar fifty a gallon gas prices again. And I see this kind of similar movement in the courts. So I think that there's this adjustment that they're hearing, you know, probably more politically fraught cases than they did before.

And some of that is just being able to pull the cases that they want to hear and decide things that are important to the country. So it feels like they're dealing with bigger issues now than maybe they did in the past on the whole. But yeah, there's this downward trend, and I don't think we're going back up. Now, I think you've mentioned some important indicators of that, one of which is the number of amicus briefs filed. And so I think that that's one of the, and I mentioned this in that most important, Justice writing the most important opinions on the court piece, that amicus briefs are one of

these gauges of case importance. And so as we see these numbers tick up, we can say with some level of certainty that there's more dispersed importance of these cases. And so, yes, as you hear more important cases, we see more amicus briefs filed. We see more separate opinions. And I think we're seeing more separate opinions for a few different reasons. But one of them is that we're just hearing more important cases where the justices want

to have their voices heard. And so I think we have a lot of things that are kind of moving in the same direction. The emergency docket question, I think you can spin it both ways, that the court is hearing cases that it wouldn't otherwise necessarily decide on at an earlier stage. But because of that, the justices aren't looking in the same level of depth at those cases as they are with something on the merits docket. So we could say that it's unlikely they're putting

as much time into each of those cases as they would with a case that's on the merits docket that's orally argued. And so I don't think we're comparing apples to apples there, but I do think that there are some reasons for the downward trend. Now, in terms of separate opinions, I think that that has something to do

with more important, more politically fraud cases, but also something to do with this six to three conservative to liberal composition of the court. We talked earlier about how the six conservative, quote unquote, conservative justices, aren't all the same type of conservative. As we have different voices of what conservative means and what types of jurisprudence these justices have, we're going to see different

concurrences from the conservative justices on the court. I think that has been moving in, that's where we see this upward-tick in separate opinions. On the left, Kagan has never written a lot of concurrences, and she descends occasionally in some of these big cases, but she's not a big separate opinion writer. Sotomayor has been a big separate opinion writer since she's joined the court, and Jackson seems to be more or less filling this void that Justice Breyer left. So the big differences seem to be on the right side of the court, not on the left, and so I think there are various different reasons for why we're seeing more

separate opinions than we have before. To new friends. I don't find them that pleasant to be around. On September 13th, I guarantee you won't want to leave. Speak no evil is filled with teeth clenching. Seek cloying suspense. Something's not right with him. I've always wanted to family like You know what's great about ambition? You can't see it. Some things look ambitious, but looks can be deceiving. For example, a runner could be training for a marathon, or they could be late for the bus. You never know. Ambition is on the inside. So that road trip bucket list? Get after it. Drive your ambition. Mitsubishi Motors.

So if there was a time in which it appeared that, strangely enough, given the composition of the court that Clarence Thomas might be the least influential justice of the nine. In other words, that he was somebody that was perhaps the outlier of the nine. But looking at the data from the previous term, it doesn't look like at all we have that sort of counterintuitive conclusion where one of the majority justices is actually more frequently than minority justices. It looks like you did have a clustering at the bottom in frequency and majority with

the three more liberal justices. Is there any sense between those three as to which of the three of the Democratic appointed justices has been or is most influential? Yeah, so I think in terms of the justices on the right, starting with kind of looking at Thomas, that he's the most likely to make it move separately. So I think where he means an example of that, right? Thomas has, by far and away, the most lone dissents on the current court. Not taking into account the fact that he is on the court by far the longest of all these

justices. If we control for the amount of time, he by far has the most number of 8 to 1 dissents. He seems like he is the most confident about moving in his own direction in that respect. This past term, as you note, David, he was in the majority just about as frequently as Alito and more such. Last term he wasn't. So I think this is going to be inconsistent.

He was in dissent most frequently last term of the justices. And so I think we will see this. It's kind of squishy in terms of who is going to be the farthest to the right and the least likely to be in the majority of the court. And this term we see it's the justices on the left that were in dissent most frequently. So some of this is going to come down to how strong this six justice conservative block really moves together. Is it strong?

Are they consistently voting together? If that's the case, then it's unlikely that Thomas is going to be the biggest outlier on the court. If they're not, then we might see some difference there. This is the difference between last term and this term. Last term, we had generally more agreement in terms of seeing less of these ideologically divided decisions, and Thomas was in agreement less. He dissented more.

This term, we saw a little bit more division than we did last term, but not as much as in 2021. And Thomas was more in the majority. Now in terms of the justices on the left, I think the one that has the most pull is Justice Kagan, if only for the fact that she seems to be the most moderate of the three, and so closest to this middle block of three justices. And so she seems to be the one that has the biggest poll. She also seems to be the one that's writing dissents in some of the biggest cases. And so that shows some level of influence.

But yeah, I think Sotomayor is probably the justices biggest outliers. She tends to be the one that descends most frequently of the justices on the left. And, you know, Jackson is a little bit less than that. Actually, she descended less frequently than even Kagan this past term. But, you know, we're still seeing Jackson kind of figure out her place on the court. I think, you know, Kagan is the one that's most towards the middle of the court of the three. So something I've heard is that the Supreme Court only seems like it's not an insane six, three hyper conservative court because the Fifth Circuit keeps teeing them up with even more

bonkers town stuff from the right so that they almost like give the Supreme Court the, you know, ball right over the plate so they can have a few liberal decisions that make them look so reasonable, but it's only because the Fifth Circuit's acting cray cray. I'm curious what you think about that theory and how we're supposed to think about circuit reversal rates, because in any given term, first of all, lots of circuits get reversed 100% of the time because they only have one or two cases up. But even those circuits like the Ninth Circuit, the Fifth Circuit, the Second Circuit actually got reversed more last term and it had seven cases up. I think the Fifth Circuit had nine.

So, I don't know, by the time the Supreme Court takes your case, they're more likely than not reversing you. How do you look at circuits and what they're doing and how crazy they are, I guess? So, you know, one thing about the way we look at circuits is that, you know, circuits are made of a diverse coalition of judges. And so you have random panels, the Supreme Court obviously gets to pick which decisions it wants to review. But to say that the Fifth Circuit is much more conservative

than the Ninth Circuit, there might be something behind that, but we're seeing our distinct randomly selected panels and these decisions are being reviewed. So it's not, you know, reviewing necessarily on box across the board. So, you know, there's that aspect. Now, you know, I think the fifth circuit,

especially this past term came out with some of these really conservatively minded decisions and that, you know, probably pushed a little bit farther to the right than the justices were willing to go in some of these cases. But these weren't all very heavily ideologically fraught decisions, right? I mean, you have a handful of them,

then you have a handful of less salient cases that the Fifth Circuit decided. And so I don't think it's only ideology. And frankly, when we look back at one of these reversals from a couple years ago, Dobbs, the reversal was actually a reversal where the Fifth Circuit upheld the decision against the abortion ban. So we see reversal there, and we talk about decisions to the right. Well, the Fifth Circuit was to the left of the Supreme Court there, and the Supreme Court reversed.

So it's not a universal trend. There's some randomness there. I think we have the Fifth Circuit moving in somewhat of a conservative decision based on the decisions that the Supreme Court reviewed. But I think there's also something to do with case salience. They're hearing some really, really big issues. I think that's what the Supreme Court wants to review, these big issues that affect big parts, large parts of the population generally.

If the Fifth Circuit's hearing those cases, then the Supreme Court's going to take them up and the Supreme Court tends to reverse. There's a theory within the research that says that the Supreme Court probably takes cases to reverse because if they don't take a case, it more or less affirms the lower court's decision. So if the Supreme Court really wants to have the most input in terms of the direction of the law, it oftentimes is through reversals where you're actually changing the direction. There still is room for importance in affirmances in that you're still making a national constitutional

standard in a lot of these cases. But if you want to have the most bang for your buck and you're the Supreme Court, it seems to pay to reverse. As you noted, Sarah, the Fifth Circuit wasn't the most reversed last term. Granted, the Ninth Circuit was reversed less. And I think that's another conversation that gets started in a lot of these discussions at the Supreme

Court. Is the Ninth Circuit most liberal? And if so, should we expect the Ninth Circuit to get overruled the most frequently? But in terms of the Fifth, yeah, I think there's something there. But I don't think it's necessarily entirely based on the Fifth Circuit being more conservative than the Supreme Court, as much as the fact that especially this past term, the Fifth Circuit had a lot of these important cases and they moved in directions that seemed to go against

what the Supreme Court thought the law should look like based on constitutional standards. You know, one thing that is interesting in reading, so your comprehensive report on the past term, you know, your Supreme Court stat review for 23, 24, really interesting that you keep track of who argued and how many times they've argued. I mean, there are some people there

with some really sterling numbers on the number of times that they've argued. But have you ever considered keeping track of something along the lines of one lost records, and would that be helpful at all, have you ever considered keeping track of something along the lines of one loss records? And would that be helpful at all? Or is there an element of that kind of assessment that might be perhaps somewhat unfair? In other words, that if a person is taking a particularly difficult kind of case, like let's say they're coming up repeatedly on death penalty review

cases, which don't always tend to succeed. Just out of curiosity, because one of the things I find really interesting about the review is just some statistics like, I don't know how much it matters that one justice talks more than another, but it was really surprising to see how much more Justice Jackson speaks in oral argument than everyone else. So I was just curious about that one detail. Have you ever considered kind of keeping track of the one-loss records of the advocates?

Well, so several years ago, I think 2016 or so, I put out a co-authored article that looked at cert success. So how frequently cert petitions were granted. And I looked at this across attorneys and across law firms and saw some of the expectations affirmed. You have Paul Clement at a really high cert grant rate, some of the other really well known names that are arguing before the Supreme Court. I haven't looked at win-loss record across a wide set of cases yet. I've looked at it across a few terms.

But yeah, I think it's a difficult question to ask because how much of a docket does a attorney have the choice to take, right? If you work in a big law firm, and you might have some agency over the cases you take, if you're Paul Clement, you probably have a lot of discretion over the cases you take.

So you're going to take winners that you see. You also have to happen to have a favorable court to some of the positions you argue. So that's not bad either. But yeah, to the extent that attorneys can select the cases they take, and I think a lot of these attorneys at these high levels of prestige, they have the ability to choose the cases they take.

Right. It's hard to say that win-loss is really meaningful, but that's another interesting gauge. There's also, I guess, this complication that there's a fair number of decisions that are in part. So you have to take a subset of decisions and say, these are clear win-losses. What do we say about decisions where they vacate a lower court decision?

Well, oftentimes that means it's the petitioner that wins, but when we read into the decisions, vacates don't necessarily mean that the court's really siding with the petitioners. So we need to have some clear metric of what winning means. And so it might just mean affirm and reverse, but then we lose a lot of the nuance in the middle. But you know, so these are some of the complications. But yeah, I

thought of it definitely something that that could be written about. And, and that's something that, you know, wait and see and might pop up in the future. So David, I've got a question for you. You know, you talked about the number of words spoken and the time spoken both really stand out for Justice Jackson. Do you feel that way when you're listening to the arguments or reading them? Because I don't, I guess, is what you don't. Interesting.

Only on one or two, one or two arguments has it felt like that. There's been a couple of times, but I would honestly, you know, I, maybe it's because the times when, the times when she spoke were pretty darn important. Amy Coney Barrett in my mind stood out as being more prominent in speaking than actually turned out to be the case. Justice Jackson was maybe a little bit less just going by feel than I thought, but Amy Coney Barrett, for example, is just like right there sort of in the lower, one of the lowest four on speaking,

and I would not have thought that, and I definitely would not have thought that Justice Jackson was by far. So just to put it into perspective, she spoke 78,215 words to the next highest Justice Gorsuch, 51,000. Like it's not close. Not close, not close. And that was my perception on like a case or two, but certainly not enough

to account for that kind of difference. Adam, I'm curious, you know, you do this for a living. You've got lots of posts on empirical SCOTUS. You write law review articles, but you also read the news. Presumably you listen to a few podcasts now and then. What are the narratives that you find most frustrating about the court? You know, is it they're not doing law, they're just doing politics?

Is it? I don't know. You pick. Yeah, no. I mean, I think you're right on the same wavelength. Is that I like to think of the court as a neutral body that takes cases and decides them. And I think that the justices are generally

genuine in saying that they're doing this. And so, yeah, I think these attacks that the court is doing things for political reasons can be disingenuous at times. And look, I think that things can be framed that way based on things that are going on outside of the court and based on the ways that people interpret things. And frankly, when President Trump went and said that he wants justices who are going

to overturn Roe, that puts that- Doesn't help. Places that seed in people's minds. So there's sometimes ways that people talk about this within the political sphere that I think push people to then think about the political nature of the justices. As somebody that studies the Supreme Court, both historically and currently. I try to take the justices on their words as being genuine. And so, the attacks that I like to make on the decisions tend to be from a legal angle. Are they following law?

Are they doing the right thing by overturning precedent or not? Do the justices have any reason not to overturn precedent if they think that the old decision was wrong? These are the types of questions I think people could be asking. But to say that they're necessarily prejudiced in cases, I think obscures the fact that they generally have different ways of thinking about the Constitution and about case law.

And that's okay. They can think about these things differently. We're not expecting some monolithic entity on the court that they're all going to see the same thing and decide things in the same vein. I mean, one of the things that Justice Sotomayor said in the past, and you know, she got a lot of flak for it, was the importance of having a Latina justice, a different voice on the court. Now, you know, whether it was a good thing or not to make that statement, you know, I think that can kind of push people's sensitivity in the sense that,

you know, okay, maybe that's, you know, not the type of characteristic we're looking for. But this notion that we have diverse voices on the court isn't a bad thing. And even within the six justices on the right and the three justices on the left, we have diversity of jurisprudence, the diversity of opinion. And so I think that it's important to take

the justices on their word a little bit more than I think that it's important to take the justices on their word a little bit more than I think is the case in the popular press right now. And if we do that, then it becomes more of a study of what the justices are doing based on the law and based on what we see in casebooks, and a little bit less on what we see as biases and prejudices of the justices. So yeah, I think that's the narrative that I would hope can be deconstructed.

But in terms of politics right now and what's going on and how the Supreme Court is coming up in the press, I don't think that narrative is going anywhere anytime soon. One quick question. When I talked to Justice Gorsuch about his book and was able to get into a couple of other things, one of the things that I asked about was civility on the court and sort of the, what kind of environment is on the court right now?

And he immediately pivoted to numbers. And he said, hey, if you want to talk about civility and the relationships of the justices, let's look at how we work together. And he pointed to the prevalence of, for example, 9-0, the unanimous cases. And he made the point, we're only hearing the hardest cases, and a majority of them were deciding unanimously. And then the 6-3, the ideological 6- three, where it's six Republican nominees,

three Democratic nominees, are a small minority of the cases. And so one of the questions I had is, what are you seeing in the trend line? Are we holding pretty stable on that notion of sort of a general majority, of most cases are decided unanimously, or plurality are decided unanimously,

and only a minority are in that true ideological 6-3 division. What are you seeing as the numbers as far as that ideological mixing over time? So unanimous decisions have been consistent across time. We're seeing them in about a third to a half of the cases. So that hasn't changed very much. 2021, the year that Dobson-Bruin, the term that Dobson-Bruin were decided in, was one of the few terms that I've seen a different breakdown as more prevalent than the nine zero.

That was six three that term. And now that wasn't six three ideological divisions by themselves. This is six three of all different kinds of makeups, including the ideological divided cases that happened to be at a height that term. But by and large, the terms have unanimous decisions as the most prevalent type of decisions.

Now, one could say that that means there's a lot of consensus. That could also mean that the court's just dividing cases between some that are easier to decide and some that are more complicated. And so we should be focusing on the more complicated decisions as the ones where we really look for this division and to see where it lies.

But yeah, it's hard to gauge. We can look at these numbers. We can also look at the language and the opinions. You have some dissents that are really more scathing than others. That might show some of the undercurrents of what's going on between the justices and their relationships.

But in terms of pure numbers, we're seeing an uptick in 6-3 decisions. We're seeing about a steady number of unanimous decisions. And so if we go by the numbers, then I think you could make either claim that we're seeing about a steady number of unanimous decisions. And so if we go by the numbers, then I think you could make either claim that we're seeing more of this ideological 6-3 type of decisions because that's gone way over the 5-4s since Kennedy retired. But we're also seeing a stable number of unanimous decisions and that hasn't changed. Adam Feldman from Empirical SCOTUS and Optimized Legal Consulting. Thank you for

coming on Advisory Opinions and walking through all this with us. Thanks so much for having me. It's great.