I've written exhaustively about this administration's sheer statistical failure at the Supreme Court. It has the worst record of any modern presidency, whether you count in absolute won-loss -- where the solicitor general's office struggles to get to 50 percent, against a historical norm of 70 percent -- or by unanimous losses alone.
While we're still in the part of the Court's term before the decisions start flying fast and furiously, I thought I'd present the latest update on where we stand with respect to those unanimous losses, where President Obama doesn't even get the votes of the two justices he appointed. Here are the stats:
- In the first 6.5 years of Obama’s presidency (January 2009 to June 2015), the government lost unanimously at the Supreme Court 23 times, an average of 3.62 cases per year.
- In all 8 years of George W. Bush's presidency, the government lost unanimously 15 times (1.875 cases per year).
- In all 8 years of Bill Clinton's presidency, the government lost 23 times (2.875 cases per year).
- In other words, Obama has lost unanimously twice as often as Bush and 1.5 times as often as Clinton. Obama also passed Bush's 8-year total in less than 5 years.
- The Justice Department's unanimous loss rate from 2012 to 2014 was especially bad -- 13 cases in 30 months -- almost three times Bush's overall rate and almost twice Clinton's (and that doesn't count amicus litigating positions with unanimous losses).
For the record, here are the unanimous losses in the last four terms, so we can reminisce about the greatest hits (cases in which Cato filed marked with an asterisk):
- 2012 (4 cases): United States v. Jones*; Sackett v. EPA*; Hosanna-Tabor v. EEOC; Arizona v. United States
- 2013 (5 cases): Gabelli v. SEC*; Arkansas Fish & Game Commission v. United States*; PPL Corp v. Commissioner of Internal Revenue*; Horne v. USDA*; Sekhar v. United States
- 2014 (4 cases): Burrage v. United States; Bond v. United States*; Riley v. California*; Noel Canning v. NLRB*
- 2015 (3 cases): Mach Mining v. EEOC; Henderson v. United States; McFadden v. United States
These cases have nothing in common, other than the government’s view that federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be. If the government can’t get even one justice to agree with it on any of these unrelated cases, it should realize there’s something seriously wrong with its constitutional vision.
And so, as we look ahead to the opinions due to come down this spring and summer, keep in mind that if the government loses, it won’t be because its lawyers had a bad day in court or because the justices ruled based on their political preferences. It will be because the Obama administration continues to make legal arguments that don’t pass the smell test.