Each of the last two terms, the United States has been a party to at least half of the cases on the Supreme Court's merits docket. That's a big deal, and not just because it's *never* happened before.
The right wing (I won't say "conservatives" because they are not) used to complain about unelected judges setting policy that should be set by elected officials. Now they want the unelected judges to overturn laws passed by elected officials.
Like a lot of right wing positions, the reasoning is shown to be insincere attempts to implement their ideology instead of applying a consistent approach. Other examples include McConnall's approach to Court nominees and arguments prior to the overturn of Roe, that abortion law should be determined by the states, and now trying to ban abortion nationally.
I am curious what percentage of government cases are being driven by questions of technology. Mt Crim Procedure class has highlighted how technology impacts and distorts original intent and interpretation of statutes and the constitution.
In the Oklahoma charter school case, why did the appeal of the Oklahoma Supreme Court’s decision go straight to the US Supreme Court rather than through the lower federal district and appeals courts?
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.
More fundamentally, as the Tenth Amendment and Article III emphasize, federal courts have only the powers delegated to the federal government. Federal courts (federal judges) were given only limited powers to review what state courts (state judges) do.
I know you guys are lawyers, so you probably have not been trained even in the basics of statistical analysis. So, this is offered for your edification: That is an inappropriate use of a best fit line. Linear regression is the wrong tool here.
1) Not all modeling or regression is linear. Those best fit lines are the easiest things to do, but they are not always the right tool. ANY sort of equation can be used, not just those describing lines.
2) Substantive, linear regression assumes that the relationship is...linear. That the underlying mechanism is basically a linear relationship, however weak or strong. (And a flat law of slope zero entirely disproves that.) But most relationships are not actually linear.
3) Fancy word: heteroskedasticity. Or heteroskedastic. It means that the deviations from the line—linear or otherwise—are basically the same throughout the range. That is, they are randomly distributed across the rage, equal above and below, random in size in ways that really cancel out. Those deviations are *error* and error is supposed to be random, rather than having some meaning. So, they should not clearly be bigger one end than the other, or in the extremeness, or whatever.
4) This one does NOT show heteroskedastic error. The error used to be positive in the 1990's (1990-2001), switched to generally negative for ~15 years (2002-2018) and has been generally positive since. If linear were appropriate, the positive and negative errors would be randomly distributed.
5) So, what would a better statistical analysis show? Well, I'm just eyeballing here, but I see something pretty darn flat from 1990 to ~2016. Maybe increasing variance over time? Not sure. But then there's a real increase from ~2017 forward. There is something like an inflection point there.It's been generally increasing since them. That's what I see in the graph. No general trend for ~25 years, and then increasing for ~8 years.
6) Then, we go from the basic statistical analysis and ask, "Does 2016/2017 mark a substantively interesting or notable point of change? Is there something there that might have changed that might take a share about 1/3—though it deviated from year to year— and cause it increase the course nearly a decade by 50%/~17 percentage points up to ~1/2? Can you think of anything?
*****************************************
Good statistical analysis can provide insight, directing us to consider something we might not have seen. Bad statistical analysis can direct us to things that are not there, or hide from us things that are.
Good statistical analysis can lend further evidence to support ideas that already have. Bad statistical analysis can provide false evidence for bad ideas or miss evidence to support good ideas.
6) Then, we go from the basic statistical analysis and ask, "Does 2016/2017 mark a substantively interesting or notable point of change? Is there something there that might have changed that might take a share about 1/3—though it deviated from year to year— and cause it increase the course nearly a decade by 50%/~17 percentage points up to ~1/2? Can you think of anything?
*****************************************
Good statistical analysis can provide insight, directing us to consider something we might not have seen. Bad statistical analysis can direct us to things that are not there, or hide from us things that are.
Good statistical analysis can lend further evidence to support ideas that already have. Bad statistical analysis can provide false evidence for bad ideas or miss evidence to support good ideas.
Fn. 6 reminds me that the 12th edition of SCP will be published this year. Field Marshal Vladeck, do you know if it’ll be available in print or only as a digital product for Bloomberg Law subscribers?
Couldn’t part of this increase be due to the right wing deliberately creating lawsuits targeted for Scotus? I can’t think of a particular one right now, but I know that there are a bunch out of TX & MO.
"Either way, we’ll know soon; in both the Oklahoma and standing cases, the Court set accelerated briefing schedules—so that the disputes could be argued in April and decided by the end of June. (Why either case warrants such treatment is … not immediately obvious.)"
In the case regarding charter schools, it's possible they intend to rule quick enough that judgement could be put into effect before the new school year? Not sure how realistic that is, but it's possible.
> Of the 62 cases (counting consolidated pairs as one each) on the plenary docket for the current term, 31 involve a federal petitioner or respondent (even I can figure out that percentage).
Who'd have imagined the federal system would evolve into a clash between governing by E. O. vs. governing by injunctions? The Founding Fathers probably never contemplated such a thing. Meanwhile, the third leg of the governing stool is mired in budget battles and gargantuan legislative efforts designed to get often unrelated matters approved amidst the smoke. You may be on to something; maybe it's a tripartite system only hitting regularly on two cylinders.
I always enjoy these articles and I know you’ve addressed some of this in the past but three areas that stand out as being worth a longer read: the issue involving ‘national-wide” injunctions. What really are the arguments on both sides and how do you disentangle this from one’s partisan bias; forum shopping - what Distict Courts are finding their rulings and Appellate rulings as a source of further appeal and finally, immigration law.
Oh Lordy. All my life, and life of my forebears (who got here in 1636) the words "free exercise" mean you can practice your religion without interference by the government. How is the court going to morph that into "you have the right to government funding of your religion?"
I enjoyed the piece, but the least-squares fit on the chart is pretty poor (or would be, if it were given). It's pulled down on the left by the anomalously low first point. During Clinton it seems to decline steadily, but there are also such wide swings in the middle, it's hard to see anything. It's up since Trump is about all I would say. Maybe you could argue up since mid-Bush.
PS Why the very pronounced annual up and down? It's there for almost every two-year period.
The right wing (I won't say "conservatives" because they are not) used to complain about unelected judges setting policy that should be set by elected officials. Now they want the unelected judges to overturn laws passed by elected officials.
Like a lot of right wing positions, the reasoning is shown to be insincere attempts to implement their ideology instead of applying a consistent approach. Other examples include McConnall's approach to Court nominees and arguments prior to the overturn of Roe, that abortion law should be determined by the states, and now trying to ban abortion nationally.
I am curious what percentage of government cases are being driven by questions of technology. Mt Crim Procedure class has highlighted how technology impacts and distorts original intent and interpretation of statutes and the constitution.
Interesting comment Stephanie. Is "AI" granting CERT yet?
In the Oklahoma charter school case, why did the appeal of the Oklahoma Supreme Court’s decision go straight to the US Supreme Court rather than through the lower federal district and appeals courts?
See 28 U.S. Code § 1257 (https://www.law.cornell.edu/uscode/text/28/1257):
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.
More fundamentally, as the Tenth Amendment and Article III emphasize, federal courts have only the powers delegated to the federal government. Federal courts (federal judges) were given only limited powers to review what state courts (state judges) do.
I know you guys are lawyers, so you probably have not been trained even in the basics of statistical analysis. So, this is offered for your edification: That is an inappropriate use of a best fit line. Linear regression is the wrong tool here.
1) Not all modeling or regression is linear. Those best fit lines are the easiest things to do, but they are not always the right tool. ANY sort of equation can be used, not just those describing lines.
2) Substantive, linear regression assumes that the relationship is...linear. That the underlying mechanism is basically a linear relationship, however weak or strong. (And a flat law of slope zero entirely disproves that.) But most relationships are not actually linear.
3) Fancy word: heteroskedasticity. Or heteroskedastic. It means that the deviations from the line—linear or otherwise—are basically the same throughout the range. That is, they are randomly distributed across the rage, equal above and below, random in size in ways that really cancel out. Those deviations are *error* and error is supposed to be random, rather than having some meaning. So, they should not clearly be bigger one end than the other, or in the extremeness, or whatever.
4) This one does NOT show heteroskedastic error. The error used to be positive in the 1990's (1990-2001), switched to generally negative for ~15 years (2002-2018) and has been generally positive since. If linear were appropriate, the positive and negative errors would be randomly distributed.
5) So, what would a better statistical analysis show? Well, I'm just eyeballing here, but I see something pretty darn flat from 1990 to ~2016. Maybe increasing variance over time? Not sure. But then there's a real increase from ~2017 forward. There is something like an inflection point there.It's been generally increasing since them. That's what I see in the graph. No general trend for ~25 years, and then increasing for ~8 years.
6) Then, we go from the basic statistical analysis and ask, "Does 2016/2017 mark a substantively interesting or notable point of change? Is there something there that might have changed that might take a share about 1/3—though it deviated from year to year— and cause it increase the course nearly a decade by 50%/~17 percentage points up to ~1/2? Can you think of anything?
*****************************************
Good statistical analysis can provide insight, directing us to consider something we might not have seen. Bad statistical analysis can direct us to things that are not there, or hide from us things that are.
Good statistical analysis can lend further evidence to support ideas that already have. Bad statistical analysis can provide false evidence for bad ideas or miss evidence to support good ideas.
6) Then, we go from the basic statistical analysis and ask, "Does 2016/2017 mark a substantively interesting or notable point of change? Is there something there that might have changed that might take a share about 1/3—though it deviated from year to year— and cause it increase the course nearly a decade by 50%/~17 percentage points up to ~1/2? Can you think of anything?
*****************************************
Good statistical analysis can provide insight, directing us to consider something we might not have seen. Bad statistical analysis can direct us to things that are not there, or hide from us things that are.
Good statistical analysis can lend further evidence to support ideas that already have. Bad statistical analysis can provide false evidence for bad ideas or miss evidence to support good ideas.
I’m with Mark Twain on this: There are lies, damned lies, and statistics. 😉
Fn. 6 reminds me that the 12th edition of SCP will be published this year. Field Marshal Vladeck, do you know if it’ll be available in print or only as a digital product for Bloomberg Law subscribers?
Couldn’t part of this increase be due to the right wing deliberately creating lawsuits targeted for Scotus? I can’t think of a particular one right now, but I know that there are a bunch out of TX & MO.
Duh! Dobbs is one obvious one
"Either way, we’ll know soon; in both the Oklahoma and standing cases, the Court set accelerated briefing schedules—so that the disputes could be argued in April and decided by the end of June. (Why either case warrants such treatment is … not immediately obvious.)"
In the case regarding charter schools, it's possible they intend to rule quick enough that judgement could be put into effect before the new school year? Not sure how realistic that is, but it's possible.
> Of the 62 cases (counting consolidated pairs as one each) on the plenary docket for the current term, 31 involve a federal petitioner or respondent (even I can figure out that percentage).
I should hope so, math major. 😂
Who'd have imagined the federal system would evolve into a clash between governing by E. O. vs. governing by injunctions? The Founding Fathers probably never contemplated such a thing. Meanwhile, the third leg of the governing stool is mired in budget battles and gargantuan legislative efforts designed to get often unrelated matters approved amidst the smoke. You may be on to something; maybe it's a tripartite system only hitting regularly on two cylinders.
Re footnote 4 of this a article, I would love to see you do a trivia bit on when non US amici have taken part in oral argument
I always enjoy these articles and I know you’ve addressed some of this in the past but three areas that stand out as being worth a longer read: the issue involving ‘national-wide” injunctions. What really are the arguments on both sides and how do you disentangle this from one’s partisan bias; forum shopping - what Distict Courts are finding their rulings and Appellate rulings as a source of further appeal and finally, immigration law.
Oh Lordy. All my life, and life of my forebears (who got here in 1636) the words "free exercise" mean you can practice your religion without interference by the government. How is the court going to morph that into "you have the right to government funding of your religion?"
Czar Holman was in Blue Chicago yesterday announcing "enhanced targeted" deportation wearing a "I'm a tough guy" wardrobe from central casting.
Odd propaganda: "Congress has a 'mandate' to fund "enhanced deportation". Just round 1.
I enjoyed the piece, but the least-squares fit on the chart is pretty poor (or would be, if it were given). It's pulled down on the left by the anomalously low first point. During Clinton it seems to decline steadily, but there are also such wide swings in the middle, it's hard to see anything. It's up since Trump is about all I would say. Maybe you could argue up since mid-Bush.
PS Why the very pronounced annual up and down? It's there for almost every two-year period.