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


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

Justice Majority votes Total Votes % in majority
C. J. Magnuson 47 47 100%
J. Page 36 46 78.3%
J. P. Anderson 36 47 76.5%
J. Meyer 40 47 85.1%
J. G. B. Anderson 46 47 97.8%
J. Gildea 45 47 95.7%
J. Dietzen 44 46 95.6%

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

Justice Majority votes Total votes % in majority
C. J. Magnuson 15 15 100%
J. Page 4 14 28.5%
J. P. Anderson 4 15 26.6%
J. Meyer 8 15 53.3%
J. B. Anderson 14 15 93.3%
J. Gildea 13 15 86.6%
J. Dietzen 13 15 86.6%

End frequency.


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.



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