The 99 Percent Solution
Barack Obama says that frequently differences in judicial philosophy aren’t going to matter because in “ninety-nine percent of cases [because] the Constitution is actually going to be clear. Ninety-nine percent of the cases, a statute or congressional intent is going to be clear. But there are going to be one percent, less than one percent, of real hard cases” where differences in judicial philosophy do matter. See this:
Ed Whelan deems this absurd:
What an idiotic statement. If Sarah Palin said something so stupid, she’d be pilloried from coast to coast. As I explained months ago (when Obama used a figure of 95% for the same general proposition):
As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%. According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases. Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes—Breyer, Ginsburg, and Souter—agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.
Obama, far from being an idiot, is very intelligent. And, “as somebody who taught constitutional law for ten years” (as he tells us in the interview), he surely knows that what he is saying is false.
This seems to totally miss the point. The reason Supreme Court decisions are rarely unanimous isn’t that cut-and-dry legal issues are rare. The reason is that the Supreme Court has absolute discretion over which cases to hear, and they disproportionately choose the “hard” cases. There are lots of cases where the Supremes could choose to offer a 9-0 affirmation of a Circuit Court decision, but that would be a waste of time. Meanwhile, in his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying — he’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.
UPDATE: Ed Whelan has a response here that I do agree makes his point of view on this look a bit less ridiculous, but I would still stand by the contention that he’s completely misrepresenting Obama’s fairly clear and basic point here.
59 Responses to “The 99 Percent Solution”
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October 31st, 2008 at 10:34 am
obama doesn’t mention the supreme court. he’s talking about all federal cases, and he’s right.
October 31st, 2008 at 10:36 am
Whelan has trouble understanding your basic point –
What Obama said was obviously true – Obama just
assumes people know that SCOTUS does not rule
on every case.
Ironically – on a deep suppressed level Whelan probably
knows this – So he is accusing Obama of doing
what he is doing.
October 31st, 2008 at 10:37 am
Matt: Do you get paid for hosting NRO’s comments?
October 31st, 2008 at 10:43 am
Obama was not saying that in 99% of all SUPREME COURT CASES the Constitutional interpretation/statutory intent was clear. He said in 99% of cases. The ones that reach the Supreme Court are the other 1%.
October 31st, 2008 at 10:44 am
And just to add to the point: The Supreme Court grants something on the order of 1% of the petitions it gets for certiorari. That number, in turn, doesn’t even reflect the thousands of cases where the loser below doesn’t even bother to petition for cert (because the odds of getting the Supreme Court to accept anything are so low, it’s usually a waste of time and money).
October 31st, 2008 at 10:44 am
I can’t imagine anyone would be willing to write for NRO if they had to be subject to comments. Forget ideological criticisms, just the logical assault even a conservative could inflict on them would be humiliating.
October 31st, 2008 at 10:45 am
Indeed, a quick Google search indicates that the Supreme Court is asked to hear more than 15,000 cases per year. Obama’s assertion that the hard cases comprise “less than 1%” is probably accurate. The man was, after all, a constitutional law professor.
October 31st, 2008 at 10:45 am
I would like to see the stats on this for the federal district and circuit courts. My instinct is that there are dissents in far more than 1% of the cases brought up to the appellate level in those courts-at least 20%.
October 31st, 2008 at 10:51 am
The man was, after all, a constitutional law professor.
This chafes. He was a lecturer. Certainly smarter than most lawyers when it comes to ConLaw, but as far as I know, he does not have any kind of publication record that would lead us to regard him as a serious scholar on the subject.
October 31st, 2008 at 10:52 am
A quick look through the most recent Federal Reporter shows that 95-100% of Circuit Court opinions are unanimous. And those are just the written & published opinions. There are literaly hundreds of others listed in “Tables” where District Court decisions are affirmed so easily that no written opinion is necessary.
Obama is likely right, within a precentage point or three. Whelan simply doesn’t know what he’s talking about.
October 31st, 2008 at 10:57 am
The Supreme Court’s website pegs the total number of cases appealed to the Court at approximately 10,000 per year.
Last term the Court heard 71 of those cases. (0.71 percent)
14 of those decisions were complete unanimous, leaving only 0.57 percent of cases brought to the court where a dissenting or concurring opinion was issued.
Only 12 cases were decided on 5-4 votes (or 5-3 with a recusal). That’s only 0.12 percent of the total cases that were so close that one justice’s vote would have changed the outcome.
http://www.scotuswiki.com/index.php?title=Supreme_Court_Statistics
October 31st, 2008 at 10:58 am
Thorough, and obvious, takedown of Ed.
October 31st, 2008 at 10:58 am
Really, Eric? A ‘quick look’ through the Federal Reporter? Do you have any idea how many cases come through the federal circuits each year? If so, then I doubt that you really think you can draw up a statistically accurate analysis with a ‘quick look’ through the Federal Reporter.
October 31st, 2008 at 11:00 am
The overwhelming, vast majority of court of appeals decisions are unanimous. I was a clerk on the DC Circuit several years ago and the judge I clerked for comments on the fact that something on the order of 95% of the cases are decided w/o dissent. Also, even when you’re looking at the Supreme Court, the vast majority of cases are decided w/o significant disagreement. These are cases that involve questions about statutory interpretation and rarely provoke more than one or two dissenting votes, if that. It is really only in the realm of the most controversial subjects like abortion, speech, religion that you see the closely divided 5-4 Court.
October 31st, 2008 at 11:06 am
Tyro Says:
October 31st, 2008 at 10:51 am
…..This chafes. He was a lecturer. Certainly smarter than most lawyers when it comes to ConLaw, but as far as I know, he does not have any kind of publication record that would lead us to regard him as a serious scholar on the subject.
It only chafes, Tyro, if you are ignorant of the subject or tendentious.
October 31st, 2008 at 11:11 am
You guys are all missing the point. Someone at NRO found a way to spin this to make Obama look, if one is not a thinking and knowledgable person, like he is stupid, a liar, or both. Tomorrow your annoying wingnut cubicle neighbor will be smugly repeating to you how little Obama knows about the Supreme Court.
October 31st, 2008 at 11:17 am
as a rhetorical matter, the 99% figure was clever and effective. as a matter of fact, it is inaccurate, and anyone who practices in court on a regular basis would tell you that. congress drafts terrible statutes, a result of necessary compromises, rushes to finish, and less-than-careful use of language. those statutes cause law suits. the law suits may get resolved, most times unaimously, but that does not mean the answer was clear. in my experience handling hundreds of cases in the appellate courts and a handful at the supreme courtreading more opinions than i want to think about, and talking with judges that an answer is arrived at, it’s supportable enough, and the demands of legitimacy,and collegiality, as well as the time restraints that make concurring or dissenting opinions in every case a physical impossiblity (even for the answer-for-everything richard posner) result in an opinion that is much smoother than the debate that necessitated the opinion. the same is largely true of constitutional issues, where judicial philosophy matters more, but matters less than the few highlighted issues of each supreme court term would suggest.
i’ll give obama the benefit of the doubt and assume he knows all this and would prefer to highlight the surface results. but don’t y’all fool yourselves into thinking all of this is easy and the unanimous opinions “prove” that.
October 31st, 2008 at 11:18 am
I agree with David. My experience from clerking on the Second Circuit was that by far most decisions are unanimous. Even looking through the Federal Reporter doesn’t give you the real sense, because most cases are unreported (and an unreported case is almost invariably unanimous — it was definitely the rule in our court that if there was a dissent, then the opinion had to be a published one).
There is no way that 20% of cases in the circuits have dissents. No way. Obama is pretty on the money statistically, and of course his actual point is indisputable.
October 31st, 2008 at 11:22 am
And to bbw’s point, sure, it’s true that even a unanimous opinion doesn’t mean that there was absolutely no difficulty or no rational argument on the other side. But I don’t think that’s what Obama was trying to say.
October 31st, 2008 at 11:23 am
Hugh Hewitt is a con law professor. Hewitt is also dumber than a fucking post.
Being a con law professor is not a fail proof marker of a great thinker…
October 31st, 2008 at 11:29 am
It only chafes, Tyro, if you are ignorant of the subject or tendentious.
Perhaps life is different in law school academics, but if you’re going to pass yourself off as a scholar of anything, I expect there to be a publication record. Otherwise, you’re teaching faculty (not that there’s anything wrong with that!), even if U. Chicago regards this as a “professor” position.
October 31st, 2008 at 11:33 am
Big Bad Wolf, you still aren’t reading what Obama said precisely. Obama’s talking about all cases, not just appellate cases.
October 31st, 2008 at 11:37 am
Whelan’s response is here.
In short, it’s clear that Obama is talking about Supreme Court cases, not all federal cases. Whelan has other examples where the reference to the Supreme Court is even clearer.
Matthew’s simply wrong.
October 31st, 2008 at 11:47 am
Here are some of the quotes Whelan is referring to. It’s not really a big deal, but I think Matty Y. is wrong on this.
BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court. He gave a speech, McCain, this week saying he wants justices like Samuel Alito and John Roberts. And he defined the kind of criteria he wants. So, what would be your criteria?
OBAMA: Well, I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it’s just a matter of applying the law. I’m not somebody who believes in a bunch of judicial lawmaking. I think…
From Obama’s speech to the Planned Parenthood Action Fund:
[I]n the overwhelming number of Supreme Court decisions, [intellect is] enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.
But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.
October 31st, 2008 at 11:48 am
Whelan and Obama are discussing two different but related things, thus making Whelan the idiot.
October 31st, 2008 at 11:51 am
Even if we limit it to just Supreme Court cases–which seems ridiculous, because we’d have to believe that Obama means that a case could make it all the way to the Supreme Court even when the case is extremely clear–but even if we do limit it to Supreme Court cases, Whelan’s still wrong. Not all cases appealed to the Supreme Court are actually heard. When the Court decides not to hear a case, it is implicitly saying that it’s a matter that the previous court obviously was correct about.
October 31st, 2008 at 11:52 am
I didn’t read Whelan’s piece, but I did listen to the video, and think Matt simply is wrong.
The question to Obama asks him specifically about Supreme Court appointments, not federal judicial appointments in general. Near the start and at the end of his answer Obama refers to “Justices,” and in the federal system only those judges on the Supreme Court are called “Justices.” Moreover, right after talking about 99%, Obama’s asked about the Heller decision from last term, which is a Supreme Court decision.
Is there anything in what Obama actually says in that video that indicates he’s referring to the federal judiciary as a whole rather than the Supreme Court?
October 31st, 2008 at 11:58 am
That formal logic class has served you very well, my man.
October 31st, 2008 at 12:02 pm
Whelan is back up with a response to this post, which continues to willfully miss the point. This interview is clearly articulating a Dworkin-like approach to Constitutional and statutory interpretation. It’s not particularly subtle. He’s using terms – like “penumbra” and “hard cases” that are so specifically attributable to Dworkin that it’s the essential equivalent of saying “I endorse Dworkin’s interpretive philosophy.” Of course, Whelan needs to pretend this isn’t true, because Dworkin’s philosophy is anything but the anything goes, judges should do whatever they think is right in every case straw man that the NRO crowd is currently falsely attributing to Obama.
October 31st, 2008 at 12:05 pm
I happen to think that Obama is understating the amount of hard cases. The term comes from Ronald Dworkin’s early essay of the same name, and since then Dworkin himself has argued that moral disagreement about legal principles is more widespread.
But if we grant Whelen’s point then it only makes Obama’s argument stronger. If every close decision requires judgments of political morality over principles of fairness, then it’s all the more important to reject the strict constructionist/originalist paradigm, which flatly denies such a proposition. Obama says we need to look to judges’ empathy for only 1%-5% of cases. If that number turns out to be bigger, then it’s all the more important to abandon the Chief Justice’s fiction that he’s just an umpire calling cases like he sees them.
October 31st, 2008 at 12:22 pm
Oh ok, so now Obama isn’t telling the truth about the numbers anymore, he’s ‘articulating a Dworkin-like approach.’ Gotcha.
October 31st, 2008 at 12:32 pm
Oh Snap!!!! Looks like Whelen just schooled you guys again back at “the corner”.
corner.nationalreview.com/
October 31st, 2008 at 12:39 pm
Obama is preparing the ground for the appointment of a justice that Hatch will find conpletely acceptable. “With a good heart” like Roberts, and an ideology somewhere between Kennedy and Roberts.
October 31st, 2008 at 12:53 pm
This is definitely an illustration of a sampling bias. The sample chosen (SCOTUS cases) is but a small fraction of overall cases which are decided without even an appeal. If you apply the same test to ALL court cases, I’m sure Obama is actually correct.
October 31st, 2008 at 1:28 pm
I thought Obama’s point was about the sampling bias.
October 31st, 2008 at 2:00 pm
Matt — your update is worse. There’s nothing in the video you cite, or especially the additional quotes from Whelan, that indicates he’s talking about “the total docket that sits before the federal judicial system.” Instead the context of the video makes clear he’s talking about the Supreme Court, not the federal judicial system as a whole, as do the additional quotes from Whelan (the Planned Parenthood one is very clear).
Now, one can certainly disagree with the conclusions Whelan draws, about why Obama is making incorrect statements about cases that come before the Supreme Court, but what’s he saying is clear and contradicts your rationalization.
October 31st, 2008 at 2:17 pm
Perhaps life is different in law school academics, but if you’re going to pass yourself off as a scholar of anything, I expect there to be a publication record. Otherwise, you’re teaching faculty (not that there’s anything wrong with that!), even if U. Chicago regards this as a “professor” position.
It is different. There a number of professors/lecturers/whatever-you-want-to-call-them at most law schools who contribute through the practice of law (these are usually called “clinical professors”), by serving on the judiciary, and more rarely, by being a professional politician, rather than through publishing. They are called “professor” in class (exception: the judges are usually called “judge”), though they are not tenured or tenure-track. This is a completely different phenomenon from the non-tenure-track lecturers and adjuncts that you see in most other fields of academia — those people are (usually, and I’m way overgeneralizing) not qualified enough to join the tenure-track race; the legal instructors like Obama (or Judge Posner or Randy Stone at Chicago) have just decided to make a professional impact in a manner other than publishing.
I suspect that you’ll find a similar phenomenon in medical and business schools, though I could be wrong about the latter.
(FYI: I’m a U of C law grad, and my wife is a T-T academic.)
October 31st, 2008 at 2:19 pm
I thought geniuses like Ed pretend they don’t want “legislating from the bench.” Obama is agreeing with him and he takes issue with him over stats!?!?!?!
Second, Ed’s wrong — almost 99% of the time — and all the more so here when he mashes together numbers on this.
Obama didn’t say 99% of Supreme Court cases are per curiam, he said in 99% of them judicial philosophy doesn’t come into play. He’s right, because outside of Bush v Gore most Supreme Court cases are about different interpretations of the <<<<>>> law and have little to do with philosophy.
Take the Ledbetter case: it’s about when an action arises and discerning Congressional intent. The Court screwed up its analysis, because Congressional intent was not clear, not because Roberts, et. al. support the idea of a woman being paid less for the same work.
Ed should stay at the Corner for the next four years. Like his atrophied mind, it’s going to wither and blow away. Good riddance.
October 31st, 2008 at 2:34 pm
Supposing for the sake of argument that Obama was exaggerating the numbers… so what? He wasn’t talking about the cutoff point for paying less taxes vs. more taxes in his tax plan, or something like that where the exact number would matter. He could have used a vague phrase like “vast majority” and meant exactly the same thing, but then you’d have had to give up nitpicking and admit he was right about the overall point.
I didn’t see where Obama claimed to have done a statistical analysis of cases, so what difference does it make if his number is off by a few percent?
October 31st, 2008 at 3:28 pm
Yeah, Matt, you’re full of it on this one. Ed Whelan has plenty of quotes showing that Obama makes this claim precisely about the Supreme Court itself, NOT about the entirety of the federal system. And any well-educated lawyer would know that it’s just not true that 99% or 95% of Supreme Court cases are unanimous (indeed, you yourself acknowledge that point in your post!)
October 31st, 2008 at 4:21 pm
Ping.
October 31st, 2008 at 5:27 pm
hard cases . . .The term comes from Ronald Dworkin’s early essay of the same name
No, it’s from Justice Holmes–”hard cases make bad law.”
October 31st, 2008 at 7:24 pm
I used to know people who would do this with every celebrated person: they would quote a line of Shakespeare and say, “see? If we didn’t know it was Shakespeare, we would think it was the dumbest line of poetry of all time!” Yes, but when you do know it’s Shakespeare, you should consider that he probably has an intelligent reason for writing what he did.
Similarly, when you know that the quote was by former Constitutional Law professor and future President of the United States Barack Obama, you should consider the most reasonable interpretation: that he is saying that 99% of cases the statutory intent is clear NOT that 99% of all Supreme Court cases are clear. It’s quite obvious that Obama does NOT mean that…
November 1st, 2008 at 12:52 am
It’s quite obvious that Obama does NOT mean that…
Since Obama was talking about SC justices and never once talked about the entirety of cases heard by federal courts it is not obvious that Obama does NOT mean that.
People that find Obama talking about all federal cases are the ones that hear black when someone says community organizer.
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