Wednesday, February 22, 2012

Bankruptcy’s (Relatively) Even Keel at the Court

An analysis of nine justices’ voting patterns, 1992 – 2000
By Bronson C. Stephens
Bronson Stephens, a Third year student at Albany Law School, is a Senior Editor for the Center, as well as the Immigrants’ Rights/International Human Rights Project Director of the law school's Pro Bono Society.
This paper, like his previously published essay on Holmes and Cardozo, was written for the Judicial Process Seminar, Fall 2011 semester. (See, Holmes and Cardozo on Judicial Decisionmaking: A Contrast to Scalia and Rehnquist, Nov. 13, 2011.)

The aim of this article is to present and provide analysis of raw and statistical data covering the voting patterns of the United States Supreme Court Justices; specifically, the Justices' voting patterns in bankruptcy cases subcategorized as pro-debtor or pro-creditor. Analysis of that data includes examination of the relationships between the voting patterns of the individual Justices, the Justices’ voting patterns compared with those of the Court as a whole, and each Justice’s voting patterns within the pro-debtor/pro-creditor subcategory as compared with their overall voting patterns, both in general and as conservative or liberal.

The introductory section of this article identifies the data that has been selected and describes the method used in selecting and parsing the data. The next section briefly describes the reasoning behind the topic choice of this article. The final section presents the data and discusses findings and possible applications of data with regard to the Court as a whole and the individual Justices.

Reviewing and categorizing judicial decisions over a period of time reveals the trends of specific Justices, indicating their ideological theories and preferences. Often the most revealing data comes from judicial decisions that involve discord among Justices whose interests are usually commonly aligned. Cases where a Justice is the lone dissenter on an issue or where a coalition is formed between normally divergent colleagues frequently involve a Justice stepping outside the bounds of the label assigned to them, (liberal or conservative) and breaking with his or her ideological peers.

Dissenting, even when done along with a Justice’s ideological peers, imposes costs which are amplified when the dissenting judge is on the opposite side from their ideological peers. When a Justice has made the choice to dissent in such a case, it says something about their commitment to the topic at hand: there was some aspect of the case that was important enough for that Justice to take an action that was outside of their norm, despite the cost imposed. A series of these cases, taken as points of data, reveal more reliable patterns because of the high cost to the Justice who has broken with his/her peers.*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.