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Supreme Court Preview 2011

The 2011 Term of the Supreme Court begins with personnel stability, after a five-year period during which the Court welcomed four new Justices.  At this moment, there have been no rumors about any additional retirements.  
Last Term the Court issued 82 merits decisions; the last time the Court issued over 80 merits decisions was in the 1997 Term.  Consistent with past years, the Court reversed over 70 percent of circuit courts’ decisions.  The largest number of cases for the Court’s consideration, and consistent with last Term, came from the Ninth Circuit.  As of the end of last Term, the Court has granted certiorari on 41 cases, which is on pace for the Roberts Court to hear between 70 and 80 cases.

Interestingly, last Term about 45 percent of the decisions were unanimous, with the percentage of 5-4 decisions staying at 20% (16 decisions).  What was not surprising was that Justice Kennedy cast the deciding vote in 87.5% of those 5-4 decisions.  He was in the majority, along with Chief Justice Roberts, in over 90 percent of all decisions last Term.  The three female Justices – Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor – very often were in agreement.  With Justice Breyer, they formed the core of the Court’s more progressive wing, and frequently, were on the losing side in the 5-4 split decisions.

Certiorari has not yet been granted on any of the cases regarding the potential blockbuster issue of the Term – the constitutionality of the Patient Protection and Affordable Care Act.  Supreme Court experts will attempt to read the tea leaves by the Court’s actions: will the Court wait to grant certiorari on one of the cases as the other cases wind their way to the Court; will the Court consolidate the cases; will the Court grant only one case and then grant, vacate and remand the others; given that the Court reverses most of the cases upon which it grants certiorari, will the choice about which case to take be telling as to the outcome.  This issue may precipitate the most important clash between the Court and the Executive Branch since the New Deal.  The Court’s opinion may impact jurisprudence and direction of this country for decades to come.  

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