27 June 2006

Colorado Supreme Court Justice Ideology

The judicial philosophies of the sitting members of the U.S. Supreme Court are widely known. On the right are Chief Justice Roberts, and Associate Justices Scalia, Thomas and Alito. On the left are Associate Justices Beyer, Souter, Ginsberg and Stevens. The swing vote is Associate Justice Kennedy.

You can make exceptions and qualifications to the characterizations I've made above, on an issue by issue basis, in terms of personal style, and in terms of degree. But, the left-right divide in this "political model" turns out, on its own, to have a great deal of predictive power in explaining what the U.S. Supreme Court does. Ethnographic accounts of the way the U.S. Supreme Court operates confirm that not much deliberation actually occurs when the justices meet to discuss cases.

Colorado's Supreme Court's justices also follow predictable patterns that to a significant extent fit the left-right divide, but these Justices, unlike their U.S. Supreme Court counterparts, are not household names. Indeed, many members of the practicing bar in Colorado, while they might recognize the justice's name as familiar, would be hard pressed to describe their judicial philosophies. This post provides readers with this bare bones outline.

There are seven members of the Colorado Supreme Court. They are, with their respective dates of appointment:

Appointees of Roy Romer (a Democrat)
Chief Justice Mary Mullarkey (June 29, 1987)
Justice Gregory J. Hobbs, Jr. (April 18, 1996)
Justice Alex J. Martinez (September 12, 1996)
Justice Michael L. Bender (January 2, 1997)
Justice Nancy E. Rice (August 5, 1998)

Appointees of Governor Owens (a Republican)
Justice Nathan B. Coats (April 24, 2000)
Justice Allison Eid (February 15, 2006)

A comprehensive review of every single case decided by the Colorado Supreme Court since Justice Eid was sworn in (March 13, 2006, shortly after her appointment) leaves room for some tenantive conclusions.

Justice Eid frequently recuses herself at the moment, because of her involvement in many of the cases before the Court while she was solicitor general in the attorney general's office. In other words, she was in charge of arguments on behalf of Colorado to the Colorado Supreme Court. But, this will be temporary.

Predictably, one of the most common alignments of justices in non-unanimous cases (and many cases are decided unanimously) is for Justices Coats and Eid to dissent from, or write an opinion concurring in result but differing in reasoning, from the other five justices. To oversimplify the matter, Coats and Eid are the right wing of the Colorado Supreme Court.

Of the five justices appointed by Governor Romer, Justice Rice most often differs with the other four, although given the makeup of the Court she can't be properly called a "swing vote" on the Colorado Supreme Court. For example, Justice Rice joined Justice Coats in dissent in the recent high profile case in which the Colorado Supreme Court found that Initiative #55, regarding services for illegal immigrants, contained more than a single subject. (Justice Eid recused herself in the case, but was on the title board whose decision was reversed by the Colorado Supreme Court in the case.)

The other four justices, however, do not invariably vote as a block. For example, in a recent series of contentious rulings made on June 26, 2006 on the power of a trial court to disqualify the district attorney for a district from prosecuting a case, Justice Hobbs and Rice joined with Coats and Eid, securing a rare win for the Court's usual dissenters. When Justices Martinez, Bender or Mullarkey dissent, it is frequently a dissent "to the left" of the majority to the extent that this is discernable. Of course, it is also true that not every issues has a discernable partisan element and hinge merely on details that only a lawyer could love.

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