President Obama and the Supreme Court

President Obama has consistently made two assertions about the nature of cases decided by the United States Supreme Court. The first is that, in 95% of the cases that come before the Court, the correct result is clear-cut, "slam dunks." The second is that, in the other 5% of the cases, those that involve difficult issues, the most important quality for a Justice is "empathy." The first assertion is grossly inaccurate. The second is incomprehensible. This post discusses the first assertion. A subsequent post will discuss the second.

The Supreme Court deals with cases involving an incredible range of federal issues: tax, patent, environmental, securities law, antitrust, etc. In addition, of course, the Court deals with Constitutional issues. If President Obama were correct that 95% of these cases are slam dunks, you would expect that 95% of its decisions would be unanimous or near-unanimous (8-1).


Even a casual observer of the Supreme Court,however, knows that unanimous opinions from the Court are almost as rare as hen's teeth. Alhough I have not crunched the numbers, nowhere near 95% of the Supreme Court's decisions are unanimous or near-unanimous. In fact I would wager that the percentage of unanimous or near-unanimous opinions handed down by the Court is much closer to 5% than 95%.

The Court's docket consists of review of decisions by Federal Courts of Appeals, and State Supreme Court rulings that involve federal constitutional issues. Often, the Court takes a case to resolve a conflict among the Courts of Appeals. If these cases were slam dunks, the Courts of Appeals would not have disagreed as to the correct result in the first place.

Cases raising constitutional issues necessarily involve the construction of general provisions,e.g. "unreasonable," "cruel and unusual," etc. Understandably, the Justices frequently disagree as to the correct interpretation of these general terms. On top of that, the Justices who espouse the doctrine of the "living Constitution" assert that modern societal values, both here and abroad, may properly be taken into account in construing be Constitution. Since the Justices do not even agree on the proper rule of construction, disagreements (in the form of both concurrences and dissents) are frequent.

In short, President Obama appears to have a blinkered view of the work done by the Supreme Court. Since he will shortly be nominating a new Justice to the Court, this lack of basic understanding is worrisome.