I've got to go and do a radio interview (WWIB in Chippewa Falls if you get it) and teach CivPro, but I wanted to bring into one post one final response to the few critics of what I'm saying about the dueling numbers. There's a lot of sturm and drang here, but, essentially, I am still waiting for responses to the following:
1. The Butler campaign, not Jessica McBride or CFAF, produced a list of 70 cases which contained a key at the top identifying cases as ruling for or against an inmate. In other words, the list claims to do what McBride's critics are all over her for doing.
2. The characterization of cases as "for" or "against" the defendant is wrong. It counts, for example, a case in which the court threw out the confession of a juvenile and ordering a plan for the supervised release of a sexual predator as being rulings "for" a defendant/inmate.
3. We could just look at convictions, but we'd leave out a lot of relevant cases. In any event, it doesn't make much sense to count up convictions because not each conviction constitutes a separate decision.
3. But let's do it anyway. The list does purport to contain a count of convictions upheld or overturned. But when we look at that, we also find it to be wrong. Many of the cases - over 40& - simply didn't involve the question of overturning or upholding a conviction.
4. Even if we look at the 39 cases that the list refers to as involving "convictions", we find errors. Some are counting mistakes. Others are mischaracterizations. The Jerrell case for example is counted as upholding convictions. Another case, in which a defendant is granted an evidentiary hearing on a motion to withdraw three guilty pleas, is counted as upholding the convictions.
5. I have argued that the absolute number is kind of fun but not too helpful. What we really need is to compare the Justices in order to get at differences in philosophy. No one has done that with the conviction number.
6. But Jessica McBride says that she has with the "against" and "for" numbers. Let's take her at her word. Do we doubt that the relative numbers that she generates constitute actual differences?
7. The various criticisms of her analysis have varying degrees of merit. One is that she excluded cases that the court did not count as criminal. Some of them are relevant. But to count them, you can't just take the ones on the Butler list. You have to take all of them and to do that, you are going to have to go over the court's entire docket for four years. Has anyone done that?
8. And, more fundamentally, is there any reason to believe that these cases will change the relative rankings. The Butler campaign mischaracterizes at least three of the nine "noncriminal" cases. Even if we include the ones selected, it won't change much.
9. It's also true that some cases are more important than others. But is there any reason to think that, say Justice Butler, will be more likely to rule for defendants in minor cases? If not, throwing them out (even if we could find an objective way to do it) won't change anything.
10. Do we really doubt that the relative ranking that is generated does not conform to reality.