The 99 Percent Solution

Barack Obama says that frequently differences in judicial philosophy aren’t going to matter because in “ninety-nine percent of cases [because] the Constitution is actually going to be clear. Ninety-nine percent of the cases, a statute or congressional intent is going to be clear. But there are going to be one percent, less than one percent, of real hard cases” where differences in judicial philosophy do matter. See this:

Ed Whelan deems this absurd:

What an idiotic statement. If Sarah Palin said something so stupid, she’d be pilloried from coast to coast. As I explained months ago (when Obama used a figure of 95% for the same general proposition):

As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%. According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases. Indeed, last term, cases dividing 5–4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes — Breyer, Ginsburg, and Souter — agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.

Obama, far from being an idiot, is very intelligent. And, “as somebody who taught constitutional law for ten years” (as he tells us in the interview), he surely knows that what he is saying is false.

This seems to totally miss the point. The reason Supreme Court decisions are rarely unanimous isn’t that cut-and-dry legal issues are rare. The reason is that the Supreme Court has absolute discretion over which cases to hear, and they disproportionately choose the “hard” cases. There are lots of cases where the Supremes could choose to offer a 9–0 affirmation of a Circuit Court decision, but that would be a waste of time. Meanwhile, in his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying — he’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.


UPDATE: Ed Whelan has a response here that I do agree makes his point of view on this look a bit less ridiculous, but I would still stand by the contention that he’s completely misrepresenting Obama’s fairly clear and basic point here.