Minnesota Supreme Court Criminal Blog

If you’ve found your way here, welcome and farewell.  I haven’t been able to keep up the blog and I am sorry to say that I don’t see that changing.  Better to admit it than to slink off to an ignominious death by default.  Thanks very much for reading.

Date 2010-12-03 17:21:00

Source Lat. 44.9535296 Long. -93.1011354 [Justice Center, St. Paul, MN, US, NA]

Classification SECRET//NOFORN

S E C R E T SECTION 01 OF 02 ST. PAUL 000771

SUBJECT: CRUNCHING THE NUMBERS, MINNESOTA’S HIGH COURT

1.  (S/NF) Introduction:  For background, the end-user is referred to the March 2010 preliminary intelligence report (PIR).  That document described deepening ideological divisions on the MSC.  Reconnaissance continued following issuance of the PIR and was maintained until the end of the Magnuson regime.  The data culled therefrom permits us to speak more conclusively about trends and factions within the MSC during the final year of CJ Magnuson’s (“Sparrow’s”) rule.  End Introduction.

2. (S/NF) Unanimity.  The forty-seven criminal cases decided by the MSC during the 2009–10 term are cataloged in Classified Appendix A.  In twenty-seven of the forty-seven cases, or 57.4%, the justices all joined a single opinion, the test of genuine unanimity.  A different measure of unanimity encompasses the concurrence cases, in which the justices agreed about the result but not about the rationale that got them there.  By this measure, the justices were unanimous in thirty-two of the forty-seven, or 68%, of the cases.

An enterprising agency statistician suggested that the data would be more revealing if we separated the first-degree murder direct review cases from the court of appeals discretionary review cases.  As the end-user well knows, the direct review category includes a goodly number of cases in which the facts are so calamitous that any legal irregularities are borne away in a cascade of harmless error analysis.  Given this phenomenon — we are tentatively calling it the “hard cases make bad law effect” — one would expect the direct review cases to be more susceptible to consensus than the discretionary review cases.  In nineteen out of twenty-nine direct review cases, or 65.5%, the justices were genuinely unanimous.  They were nominally unanimous (i.e., adding in the concurrence cases) twenty-one out of twenty-nine times, for a rate of 73.4%.  The comparable numbers for the discretionary review cases are 44% and 61%, respectively.  The number that stands out is the 44% rate of genuine unanimity in the discretionary review cases.  End unanimity.

3. (S/NF) Frequency.  The following chart tracks each justice’s frequency in the majority for all criminal cases, unanimous and split, direct and discretionary.  Chief Justice Magnuson and Justices G. Barry Anderson, Gildea and Dietzen voted with the majority (and with each other) more than 95% of the time.  Justice Paul Anderson dissented at the highest rate.

Frequency in the majority, all cases

The next chart tracks frequency in the majority in the split vote cases, i.e., the cases in which there was at least one dissent.  When they could not agree, the justices disagreed with remarkable consistency. There was a distinctive 4-2 split on the court, with Chief Justice Magnuson and Justices Dietzen, Gildea, and G. Barry Anderson on one side and Justices Page and Paul Anderson on the other.  There was a less  pronounced but still regular 4-3 split when Justice Meyer joined the minority voters.  Beleaguered Justices Page and Paul Anderson found themselves holding the short end of the stick with dreary regularity.

Frequency in the majority, split vote cases

End frequency.

DISPATCHES FROM THE NEW REGIME

4. (S/NF) Dispatches.  It is early days yet in the administration of Chief Justice Gildea (cryptographers still trying to decide between code names “Allegheny” and “Gerbil”).  A listing of the court’s criminal cases to-date appears in Classified Appendix B.  Sparrow has alighted elsewhere and Justice Stras remains on the sidelines, so we are looking, for the time being, at a complement of six.  The most interesting development of the young term is Justice G. Barry Anderson’s apparent defection from the the conservative fold.  So far Chief Justice Gildea and Justice Dietzen have joined forces in concurrence or dissent on five occasions (the CJ ventured out alone in dissent one other time); Justice G. Barry Anderson has sided with the majority in every instance.  It is a subject that occasions much conjecture and theorizing on the streets of this city but, pending firmer intel, we will refrain from repeating gratuitous speculation in a diplomatic missive.

A disquieting silence has descended over the MSC of late.  Production has been scant.  This apparent lull might be the prelude to a burst of prolificacy.  Or it may simply mean that the justices of the MSC are engrossed by the gubernatorial re-count.  In any event, we shall remain at our post and report back as seems appropriate.

/destination

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From Mashable.  Perfect.

In an absorbing column in last week’s New York Times, Adam Liptak argues (sorry, link broken) that today’s SCOTUS is

wordier . . .

“The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

And it increasingly does so at enormous length.”

fuzzier . . .

“Critics of the court’s work are not primarily focused on the quality of the justices’ writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.”

in spite of the aforementioned, arguably less unanimous . . .

“One measure of whether unanimity is authentic is the number of separate opinions in nominally unanimous decisions. This last term set a record for such opinions, known as concurrences, in which justices join or vote with the majority but also issue their own opinions to express qualms about some aspect of the majority’s approach.”

and more ghost-written . . .

“These days, the writing emanating from the court can be bureaucratic and unmemorable.

‘They just don’t make great movie lines the way they used to,’ said Fred R. Shapiro, an associate librarian at Yale Law School and the editor of The Oxford Dictionary of American Legal Quotations. ‘They also don’t make great Supreme Court passages the way they used to.’

With the declining docket, justices have more time to hone their writing. But the available evidence suggests they rely on their clerks to produce first drafts, which the justices then edit.

‘Although today’s Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten,’ Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in The New Republic in 2006. ‘Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.’ “

than its predecessors.  The shoe appears to fit the present-day Minnesota Supreme Court as well — we can debate about how closely — where verbosity is growing apace, but clarity and elegance seem to be on the wane.

The fates have conspired to force the blog into an unplanned vacation.  We’ll be back in August.

Well!  I spoke too soon about a summer coffee break.  This, Justice Magnuson’s last day, brings a volley of new opinions, including six in criminal cases.  The link to the Court’s bulletin is here.  Looking quickly, I see one 4-3  and two unanimous decisions, and a welter of concurrences in the remaining cases.  We’ll do more with the cases in coming posts.

Today provides the last opportunity for the Court to speak as these particular seven.  One wonders about the cases that are being held over.  Has the Court worked to get out on Justice Magnuson’s watch everything in which the vote is close?  Are there remaining cases that will be locked in a 3-3 tie without Justice Magnuson’s vote?  Those, presumably, would need to be re-argued.  How about cases that are 4-2 without Justice Magnuson?  The additional vote would not affect the outcome but if it serves to convert a 4 into a 5, it lends weight to the Court’s voice.  Four-two risks the impression that the Court creates precedent on a chancy margin; of course, so does 4-3.  Do you re-argue these cases?

Debate about the Minnesota Supreme Court selections continues everywhere.  Is the Stras pick in particular intended to send a signal to conservatives about whom a President Pawlenty might nominate to the high court?  Posts (and comments) from Volokh Conspiracy appear here, here and here.

It’s Justice Gildea as Chief Justice and University of Minnesota law professor David Stras to fill Gildea’s seat.

Justice Gildea has developed into an extremely interesting figure on the Court.  We’re still struggling to get out our unallotment post (sorry; the vagaries of being forced to make a living) — it is, basically, an examination of Justice Gildea’s minimalist claims in Brayton.  Given Justice Gildea’s pre-eminent role in articulating the conservative justices’ positions in the term’s two high-impact cases, Brayton, the unallotment case, and Lessley, the jury trial waiver case, I think it is a fair argument that she has emerged as the leader of the Court’s strict constructionists.  Here, according to Judgepedia, is what she told the League of Women Voters in 2008 about her judicial philosophy:

“When I was sworn in as Minnesota’s 87th Associate Justice almost three years ago, I made a commitment to the people of Minnesota that I would, as Alexander Hamilton foretold in the Federalist Papers, exercise my judgment, not impose my will, and that I would do my best to honor the law because, as Daniel Webster said, the law has honored us. Those commitments describe my judicial philosophy.”

The surprise is not that she adheres to such a philosophy but, rather, how implacably she does so.  What distinguishes the current iteration of the Court, in my view, is the presence of a trio of justices who hew to a particular judicial philosophy to the exclusion of all other judicial values and purposes, such as a judges’s responsibility at times to make independent interpretative judgments that make the best sense of a given writing, or a judge’s obligation to affix new safeguards to old rights in an ever-shifting society.  The Minnesota Supreme Court was not unmindful of the importance of a restrained judiciary before the Pawlenty appointees gained ascendency; notions of judicial constraint are embedded in all the passive judicial canons, i.e., stare decisis, strictures against advisory opinions, limits on justiciability.  A court’s legitimacy flows from its restraint.  That is an old idea.  What is different is that Justice Gildea and her colleagues seem also to believe that it is the only idea.

The little bit that I hear is that the members of the Court maintain cordial relationships with one another, notwithstanding the deepening ideological divisions between them.  My impression of Justice Gildea from watching the videos of the oral arguments is that she’s focused and persistent, but not ungracious. Particularly given those deepening divisions, grace may turn out to be the most important quality a Chief Justice could bring to the job.

Justice Gildea’s shift to the high chair is not likely going to affect how she votes.  The game-changer, if there is one, is the appointment of David Stras.  I know his name from SCOTUSblog, where he is a contributor and the author of the academic round-up.  His bio on the University of Minnesota site includes the following:

“Professor David Stras joined the faculty of the University of Minnesota Law School in 2004. He teaches and writes in the areas of federal courts and jurisdiction, constitutional law, criminal law, law and politics, and law and economics. His current research focuses on the federal judiciary and the Supreme Court of the United States. Using a variety of methodological tools, including empirical and historical analyses, Professor Stras’ research has examined a variety of issues relating to the Supreme Court.”

MinnLawyerblog adds this:  (1) he is a former clerk for Justice Thomas; (2) he holds an MBA in addition to a JD; and (3) he was only admitted to practice law eleven years ago.

Professor Stras and Justice Thomas were scheduled to teach a seminar on Selected Fundamental Principles of Constitutional Law at the University of Minnesota law school this spring; does anyone know, did that come off?  Professor Stras discussed his experience clerking for Justice Thomas in a podcast that can be found here; it appeared as part of SCOTUSblog’s Black History Month offerings.  I’ve only had a chance to glance at his publications at this point.   Here he argues that the SCOTUS justices should resume their 19th century practice of riding circuit so as to expose them, among other things, to “the difficulties faced by the lower courts in implementing the Supreme Court’s sweeping (and sometimes confounding) rulings.”  Here he conducts what looks to be a rather impenetrable statistical analysis that purports to identify the factors that are most likely to lead to plurality decisions.  And that’s all I know.  If anyone out there knows Professor Stras, took a class from him perhaps, please write in.  We’d love to hear from you.

Finally, as has become my wont, I close with two observations of questionable consequence:

1.  Does anyone else think that David Stras looks like a young Nino Scalia?

2.  I think it is damned unfortunate that Governor Pawlenty chose to carry on so publicly this week about his dissatisfaction with the unallotment ruling, including spending most of his radio program reading from the dissent.  I believe that the three Brayton dissenters came down as they did as a matter of principle, not to ingratiate themselves with the governor.  This was a situation in which all three of the justices who voted in the governor’s favor were also aspirants for the Chief Justice’s job — you’d think that someone who cared about the Court’s reputation and integrity would approach it delicately.  The Court has been harmed this week by the governor’s actions.  It is not fair to the justices, including, most of all, Justice Gildea.

Jeffrey Toobin praises John Paul Stevens for his “dignified, clearheaded, and insistent eloquence.”

The Minnesota Supreme Court criminal law blog honors the man who gave us this:

The [per curiam opinion] by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Justice Stevens, dissenting, Bush v. Gore

Are they all busy thinking about unallotment?–No criminal cases the weeks of 4/1 and 4/8