To sum up, we've had a lot of conflicting calculations of how often Justice Butler has and has not ruled for defendants in criminal cases. Contrary to the assertions of Illusory Tenant and other members of the defense bar, academics calculate numbers like these all the time for various purposes.
This type of analysis is not counting cases as "right" or "wrong." It's not, despite loose use of language, even counting them "for" or "against" Justice Butler. It isn't, although some slip into the language, even counting cases as "pro" or "anti" "criminal."
Empirical studies like this are not going to capture everything that more traditional doctrinal study (i.e., analyzing the arguments for or against a position) does and it can't replace it. But if you look at enough cases in an evenhanded way, it can reveal a pattern that reveals doctrinal differences among justices.
"Among" is an important word. The key is not whether Louis Butler voted to uphold the claim of a defendant 25%, 48% or 58% of the time. We can think that any one of these numbers sounds high or low, but how are we really to know? Maybe we have a state full of blundering constables and the Supreme Court has needed to clean house.
This is where (and now I am going to cause my lefty readers to spasm again), Jessica McBride advanced the conversation. She she did a comparative analysis. That analysis showed that Justice Butler voted to uphold at least one claim of a criminal defendant in a case 2 to 3 times as often as Justices Prosser, Roggensack and Wilcox. Even though I adjusted her number for Justice Butler downward a bit, from 58% to 49% - those stark differences remain.
That tells us something and neither IT nor any of the hot and bothered anonymous commenters here have said one thing to contradict that. We can all differ on what it tells us. Maybe Justice Butler has a more enlightened view of the civil liberties of the accused. Maybe he reads those civil liberties too expansively at the expense of law enforcement. But one thing is sure. He reads them differently than Justices Prosser and Roggensack.
They have criticized the methodology. IT says that the cases have "a number of subtleties that Prof. Esenberg's suggested methodology simply can't take into consideration." True and, he didn't even have to say so, because I did in my first post on all of this. But, for these purposes, it doesn't matter. Sometimes we want to hone in on details. Sometimes we want to step back and see the big picture. Here, we see Louis Butler is three times as likely to uphold a claim of a criminal defendant that Patience Roggensack. Obviously, Justices Butler and Roggensack see things differently. Yes, there were certainly subtleties in all of these cases but we treated both Justices Roggensack and Butler the same and we had enough cases that our big picture is still valid.
But shouldn't we count how many convictions were upheld. That's the point of prosecutions, isn't it? We certainly could do an analysis comparing convictions upheld and overturned. But there are problems with that. First, a lot of significant cases don't raise the question of upholding or overturning a conviction. The Mark Jensen case is an example. Second, if you do this analysis, you can't do it like the Butler campaign did it. You have to limit yourself to cases where the court actually addressed whether or not to overturn the convictions. No base hit if you don't come to bat. Third, it really doesn't make a lot of sense to count up the convictions when each conviction does not represent an actual decison point. If I decide to throw out one piece of evidence that overturns six convictions, did I really make six decisions?
And let's say that we an analysis of convictions. We would then need to do what McBride did. We'd need to compare all of the members of the court, Let's say Justice Butler overturned 25% of the convictions or, as I think may be more likely, something around 40%. Is that too high? Too low? How does he compare to the others?
It seems reasonable to assume that the comparison is going to look a lot like McBride's. It makes little sense to think the Justice Butler is three times as likely to rule in favor of a defendant's claims generally but no more likely to overturn a conviction. But unless you do this work, I don't think the conviction number means much.
But, they say, some of these "pro-defendant rulings" are weak tea. All the defendant got is some discovery or a new hearing. Again, that doesn't matter unless we think that Justice Butler is more likely to grant defendants minor relief yet no more likely to grant major relief. That does not sound plausible.
Finally, why did I spend time on this? Part of the reason is that I have been formulating some empirical research on the court and so this kind of thing has been on my mind. But, more importantly, there are differences in judicial philosophy that ought to be discussed. There isn't, in fact, "no one here but us Scalias" and the claim that there aren't significant differences on these issues misleads the public just as much as oversimplification of the issues in some of the particular cases.