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Last week, Supreme Court correspondent Tony Mauro interviewed Washington, D.C., attorney Thomas Goldstein about the Supreme Court term just ended. Goldstein watches the Court closely, maintains statistics about its docket, and argued two cases this term. Portions of their discussion are excerpted below. Q: We’ve just come to the close of one of the most important Supreme Court terms in recent memory. How do you view the term as a whole? GOLDSTEIN: Certainly, it will be remembered for years and years to come. The justices have to be very pleased that they were able to resolve so many hot-button issues in fairly clear rulings. We didn’t end up with many of the fractured plurality opinions that drive judges and lawyers in the lower courts crazy. I also was glad to see that — except for a few unfortunate opinions by Justice [Antonin] Scalia toward the end — the opinions were pretty much free of spiteful rhetoric. Q: You keep a variety of statistics about the justices and their voting. What do the numbers tell us about the Court’s caseload? GOLDSTEIN: The number of cases decided after argument — 74 — is an all-time low for the modern Court. But that’s due in part to some cases that were settled, dismissed, or referred to another court. It seems that the justices are settling at around 80 cases a term. That number fits very well with the Court’s argument calendar, which accommodates around 80 cases if they hear two arguments each day. Q: It seemed that a large number of cases were decided by narrow majorities. Do the numbers bear that out? GOLDSTEIN: Yes, there were more 5-to-4 cases this term than in many years — 21 cases were decided by that margin at least in part. When you exclude the very easiest cases — those decided 9-to-0 or 8-to-1 — where the Court easily affirms or reverses, a third of the remaining decisions were 5-to-4. It was also very interesting to see that the Court’s five most conservative members — the chief justice and Justices [Sandra Day] O’Connor, Scalia, [Anthony] Kennedy, and [Clarence] Thomas — voted as a block far more this term. In most terms, either O’Connor or Kennedy will break away and vote with the four more liberal members of the Court in around five cases. That happened only once this term. Q: An axiom of the last several terms has been that wherever O’Connor and Kennedy go, there goes the Court. Where did the Court’s “balance of power” lie this term? GOLDSTEIN: This term really belonged to Justice O’Connor; if you failed to get her vote, you were likely to lose the case. She ended up dissenting only 4 times, and one of those was really a throwaway case about water rights. Close behind her were the chief justice and Justice Kennedy. The three of them have been at the Court’s center, of course, for quite some time. Q: What effect would the election of a Democrat or a Republican have on the balance? GOLDSTEIN: My guess is that retirements during the next term will be limited to one justice on either side of the ideological divide, so the next president probably will be able to shift the Court by a vote one way or the other. Another solidly conservative vote could probably move the Court even more on habeas corpus, affirmative action, and constitutional criminal procedure. Even though the partial-birth abortion decision was 5-to-4, Roe v. Wade really remains out of reach. Another more liberal vote could make a huge difference by rolling back some of the Rehnquist Court’s watershed rulings on states’ rights, the use of race in redistricting, and a variety of criminal issues. It’s that prospect that puts so much at stake in the election. Q: Who were the closest pairings of justices in terms of votes in cases? GOLDSTEIN: Surprisingly, the chief justice and Justice O’Connor, who disagreed in only four cases (5 percent) — far fewer than in recent terms. As you would expect because of their solidly conservative views, Justices Scalia and Thomas frequently agreed, but so did more liberal pairings. Justices [David] Souter and [Ruth Bader] Ginsburg, for example, agreed in the result in all but seven cases. Q: Were any of the alignments between the justices particularly surprising to you? GOLDSTEIN: Two 5-to-4 cases produced the rarest alignment in the Court: a majority composed of the left and right wings with all the members of the Court’s center — Rehnquist, O’Connor, and Kennedy — in dissent. The cases were Carmell v. Texas (involving the ex post facto clause) and Apprendi v. New Jersey (involving a right to have a jury decide certain sentencing enhancements). Because of Justice Thomas’ votes in those cases, he actually was in the majority in as many 5-to-4 cases — 18 — as Justice O’Connor. The statistics also put Justice Souter a little to the left of Justice [Stephen] Breyer for the first time. Q: In the 1996 term, the justices reversed the 9th Circuit at a furious pace. Has that kept up and how have other circuits fared? GOLDSTEIN: The 9th Circuit really continues to take a beating. It was reversed in 9 of 10 cases, including in the one really important case from that court this term, California Democratic Party v. Jones. The 7th Circuit … was reversed in 6 of 8 cases, including 3 times in major cases by 9-to-0 votes. Most of the attention this term was on the 4th Circuit, which did quite well by comparison. It was reversed in 5 of 9 cases, and 3 of 5 major cases, which is better than average for the Court’s docket. The two major cases in which it was affirmed were by 5-to-4 votes along the Supreme Court’s ideological lines. Q: How is next term shaping up? GOLDSTEIN: The Court has filled up its argument calendar for the first three months after the summer break, which makes it unlikely that the Court will grant cases before the end of the recess, unlike last term. The cases granted so far aren’t terribly exciting, but almost anything would pale by comparison with this term. The most interesting cases probably involve the scope of federal environmental law, search and seizure, and the Wiretapping Act. Q: A lot of attention has been focused on the Microsoft case. What do you expect to happen there? GOLDSTEIN: My bet is that the Court will send it back to the D.C. Circuit, which has made clear that it will decide on an expedited basis, although the justices certainly will give substantial respect to the solicitor general’s view that it should be heard now. I think we will get an order one way or the other during the summer recess, probably around the first week of September. If they do decide to hear it right away, it probably would be argued in January. Any quicker schedule really might trample on Microsoft’s ability to prepare its case.

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