Legal Commentary

So I've spent most of the morning watching the Sotomayor hearing on CNN (and playing with my new iPhone, which allows me to voice-google factual statements I hear on TV --- how cool is that?!).  Though many of the senators' statements are relatively boring, I was struck by Senator Sheldon Whitehouse's comments about Chief Justice Roberts.  Whitehouse referred to Roberts's famous "balls and strikes analogy, and then quoted a recent New Yorker article by Jeffrey Toobin as giving the lie to that analogy.  Toobin, who Whitehouse quoted at length, wrote that "In every major case since he became the nation?s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."

While I have no doubt that Roberts tends to vote differently than, say, Justice Stevens or that Roberts's votes tend to advantage conservative interests, I think that this broad statement by Toobin is simply untrue --- at least untrue in the criminal context --- and I am unhappy that it was repeated in a Supreme Court confirmation hearing.  In two recent and important sentencing decisions, Kimbrough and Gall, Roberts voted against the government and in favor of defendants, joining ranks with, among others, Stevens and Ginsburg.  Kimbrough permitted district court judges to disregard the 100:1 sentencing disparity between crack and cocaine in the Federal Sentencing Guidelines, a pretty controversial decision.  What is more, if you look at the oral argument transcript, you can see Roberts giving the government a pretty hard time.  (Check out pages 38-39.)

Of course, one could respond that Toobin was only making a claim about "major" cases, and that these sentencing cases, while important to a sentencing geek like me, are not that big of a deal.  But Toobin never bothers to define what he means by a "major case."  The Toobin article mentions a series of high-profile cases, including the detainee cases, the Seattle school case, Ledbetter, and the recent New Haven firefighter case.  But he doesn't discuss a single criminal law or criminal procedure case.  And because he is making a claim about Roberts's voting record in this area --- and more importantly, because he is being quoted as an authority in the Senate --- I think it deserves scrutiny.  Does anyone know of a more methodologically sound study of Roberts's voting record?