The Court’s docket of government and administrative law cases is up a bit over the past six years, increasing to forty cases: seven in 2014, eight in 2015, eleven in 2016, nine in 2017, four in 2018 and one (up to early May) in 2019.
Nineteen of the Court’s cases were won by the government below and twenty-one were won by the challenger to government authority.
With each subject we’ve reviewed, we look at each side’s winning percentage at the Supreme Court by the winning party below. In other words – are cases won by the challenger or defender of government action reversed at an unusually high rate?
Between 2014 and 2019, challengers to government conduct have won eleven cases at the Supreme Court while losing eight.
On the other hand, defenders of the government’s authority and actions have won nine cases at the Supreme Court while losing a dozen.
Merging this data to cover the entire docket, we find that challengers to government conduct, regardless of who won below, have won twenty-three cases at the Supreme Court while losing seventeen.
The Court has decided nineteen cases since 2014 involving the powers, duties and conduct of government officials and entities. The Court has decided thirteen cases involving government procedure and nine involving private parties’ rights against the government.
Turning to the individual Justices’ votes, Justice Kilbride led with twenty-one votes in favor of challengers to government authority and conduct. Justices Garman and Burke cast twenty votes apiece, Justices Theis and Freeman cast eighteen votes, Chief Justice Karmeier and Justice Thomas have cast seventeen votes each, and Justice Neville has so far cast one.
Justice Thomas has led with twenty-three votes against parties challenging government conduct. Justice Theis has cast twenty-two votes. Chief Justice Karmeier has cast twenty-one votes, Justice Garman has twenty, Justices Kilbride and Burke have nineteen, Justice Freeman has cast sixteen votes, and Justice Neville has cast three.
Across the entire twenty-nine-year period (1990-2019), challengers to government actions and authority have won seventy-five cases which losing one hundred two at the Supreme Court – a winning percentage of 42.37%. Which Justices were more likely across their tenure to support challengers than a majority of the Court on which they sat?
Eleven Justices have supported challengers at a high rate than the overall winning percentage for challengers: Justices Rarick (73.68%), Kilbride (51.3), Rathje (50%), Harrison (47.92%), Fitzgerald (46.55%), Garman (46.02%), Thomas (45.22%), Burke (44.12%), Theis (43.85%), Stamos (42.86%) and McMorrow (42.68%).
Which Justices were less likely to support challengers in these cases than a majority of their Courts? Justice Freeman voted for challengers in 42.17% of his cases. Chief Justice Karmeier has done so forty percent of the time. Four Justices were in the thirties: Cunningham (38.46%), Calvo (33.33%), Clark (31.82%) and Bilandic (30.77%). The remaining seven Justices were in the twenties: Ryan, Moran and Ward (28.57% each), Nickels (26.67%), Heiple (26.42%), Neville (25%) and Miller (24.59%).
Join us back here next Tuesday as we take on a new issue.