Batting Average of the ACLU in the US Supreme Court - ACLU

ACLU

ProCon.org is an independent, nonpartisan, 501(c)(3) nonprofit public charity

Video introduction to ProCon.org and the pros and cons of controversial topics

Last updated on: 1/9/2009 10:30:00 AM PST

Batting Average of the ACLU in the US Supreme Court

1925-1999

Introduction
Batting Average Recap
Methodology
752 US Supreme Court Cases

Voting Record of the ACLU in the Supreme Court by Decade
Case Categories Defined
Breakdown of Cases by Category and Decade
Case Win/Loss Breakdown by Category and Decade

1. Introduction

The "Batting Average of the ACLU in the US Supreme Court" examines the ACLU's win/loss record in all 752 US Supreme Court cases in which it was involved in from 1925 to 1999. The cases are examined by decade, by subject matter, and by margin of victory/loss. To read the individual case summaries visit ACLU in the Supreme Court.

Personal statement from ProCon.org's Chairman Steven C. Markoff about the batting average project.

2. Batting Average Recap

Decade Ending December 31	Total Number of Cases	Number of ACLU wins losses		Batting Average (Win %)
1929	1	0	1	0.00%
1939	7	7	0	100.00%
1949	47	33	14	70.21%
1959	41	28	13	68.29%
1969	99	71	28	71.72%
1979	148	76	72	51.35%
1989	238	120	118	50.42%
1999	171	89	82	52.05%
1920-1999	752	424	328	56.38%

3. Methodology

Time Period Covered

This work was confined to cases decided by the US Supreme Court from the formation of the ACLU on Jan. 19, 1920 through Dec. 31, 1999.
Choosing the Cases

The cases chosen were where the ACLU was shown by US Supreme Court documents or records to be:
1. a party, or
2. the attorney of record, or
3. the filer of an amicus brief
This criteria excluded many cases where the ACLU was involved indirectly or informally, including notable ones, such as Roe v. Wade, Powell v. Alabama and Loving v. Virginia.
Win/Loss Definition
1. This work has simply defined "winning" or "losing" by whether or not the ruling of the US Supreme Court was "with" or "against" the side the ACLU was on, even though there are instances where the ACLU was on the "winning side" but felt they lost and, conversely, where they were on the "losing side" but may have received a benefit from the decision.
2. It is established that in the cases of ties, where the US Supreme Court ruling has an equally divided 4-4 vote, the equally divided decision reaffirms the ruling below because petitioner/appellant needs 5 votes to overturn a judgment. In that case, we count the decision as an ACLU "win" or "loss" depending on whether the ACLU position was seeking affirmance or reversal of the judgment.
3. When the US Supreme Court's ruling goes part in favor and part against the ACLU position, we count "winning" or "losing" according to whether the Court's line of reasoning in its argument was "with" or "against" the ACLU position.
4. In per curiam decisions, the US Supreme Court often issued decisions without making public the individual Justices' voting record. In some such cases, we have categorized these decisions as unanimous "wins" or "losses" - unless an individual Justice had issued an opinion indicating their own position and adjusted the unanimous vote accordingly (i.e., if it is a concurring opinion, the vote remains unanimous; however, in the case of dissenting opinions, the unanimity of the vote fails).

4. 752 US Supreme Court Cases

Click here to view our presentation of the 752 Supreme Court cases.

5. Voting Record of the ACLU in the US Supreme Court by Decade

DECADE	WINS						TIES	LOSSES						RECAP
	5-4	6-3 5-3 4-3	7-2 6-2 5-2	8-1 7-1 6-1	9-0 8-0 7-0 6-0	Total Wins	4-4 3-3	Total Losses	0-9 0-8 0-7	1-8 1-7 1-6	2-7 2-6 2-5 2-4	3-6 3-5 3-4	4-5	Total Cases	ACLU Win%
1920s	0	0	0	0	0	0	0	1	0	0	1	0	0	1	0.00%
1930s	1	0	3	1	2	7	0	0	0	0	0	0	0	7	100.00%
1940s	6	6	5	4	12	33	0	14	6	3	0	3	2	47	70.47%
1950s	3	5	3	5	12	28	1	13	1	1	1	4	5	41	68.29%
1960s	14	12	9	14	22	71	0	28	2	3	3	8	12	99	71.72%
1970s	15	10	18	12	21	76	1	72	7	8	12	27	17	148	51.35%
1980s	24	19	11	13	52	120	1	118	22	8	11	36	41	238	50.42%
1990s	18	11	10	5	45	89	0	82	21	8	14	17	22	171	52.05%
Totals/ Average	81	63	59	54	166	424	3	328	59	31	42	95	99	752	56.38%
Percent	10.77%	8.38%	7.85%	7.18%	22.07%	56.38%	0.40%	43.61%	7.85%	4.12%	5.59%	12.63%	13.16%	100.00%

6. Case Categories Defined

The 752 cases included in the project have been divided into four main categories: 1st Amendment, Criminal Justice, Civil Rights, and Governmental Authority. These categories are subdivided as follows:

1st Amendment (197 cases)

Obscenity: Cases dealing with the limits of the freedom of "obscene" and offensive speech

Defamation: Cases involving libelous publication and slanderous utterances against individuals

Religion: Cases involving the free exercise of religion and the prohibition of the establishment of an official government religion

Press, Speech, Association: Cases involving, freedom of speech, the press, and the freedom of association

Criminal Justice (214 cases)

4th Amendment: Cases involving the protection against and the limits of unwarranted search and seizure

Criminal Procedure: Cases involving the 5th and 6th Amendment, as well as criminal trial procedures

8th Amendment: Cases involving the prohibition against cruel and unusual punishment

Death Penalty: Cases involving appeals and commuting of sentencing

Drugs: Cases dealing with narcotics as the issue or cause of arrest

Prison: Cases involving inmate rights, prison conditions, and the parole process

Civil Rights (213 cases)

Race: Cases dealing with both state and federal racial discrimination

Gender: Cases dealing with both state and federal gender discrimination

Federal: Cases involving civil rights protected by federal law

State: Cases dealing with civil rights protected by state statues or state rights and the 14th Amendment

Voting Rights: Cases dealing with the right to vote, right against vote dilution, and redistricting issues

Privacy: Cases mainly involving reproductive rights (abortion, contraception) and the individual's right to privacy

Governmental Authority (128)

Union: Cuts across categories, but generally cases dealing with government regulation of labor unions

Immigration/Citizenship: Cases dealing with people immigrating to the United States, and United States citizens living abroad

Communism: Cuts across categories, but generally cases dealing with government statutes and acts, and agencies created to deal with communism

Census: Cases involving the census count

Federalism: Cases dealing with controversy between branches of the federal government

Civil Procedures: Cases involving issues with civil trial procedures

Regulation: Cases dealing with government regulatory agencies

Immunity: Cases dealing with immunity from lawsuits and the 11th Amendment

Military: Cases involving military personnel or cases under military jurisdiction

7. Breakdown of Cases by Category and Decade

1st Amendment		1920s	1930s	1940s	1950s	1960s	1970s	1980s	1990s
Obscenity	32			1	4	8	9	8	2
Defamation	8				1	2		4	1
Religion	39			6	1	6	5	14	7
Press, Speech, Association	118	1	5	12	4	10	10	41	35
Total:	197

Criminal Justice		1920s	1930s	1940s	1950s	1960s	1970s	1980s	1990s
4th Amendment	52			1		11	11	17	12
Criminal Procedure	72		1	2	2	13	12	24	18
8th Amendment	2					1			1
Death Penalty	17					1	5	3	8
Drugs	44				1	4	9	15	15
Prison	27			2		1	7	6	11
Total:	214

Civil Rights		1920s	1930s	1940s	1950s	1960s	1970s	1980s	1990s
Race	66			13	4	7	11	23	8
Gender	40					1	18	12	9
Federal	33						1	19	13
State	44				2	5	18	14	5
Voting Rights	16					1	4	3	8
Privacy	14					2	3	6	3
Total:	213

Government Authority		1920s	1930s	1940s	1950s	1960s	1970s	1980s	1990s
Union	15		1	4		2	5	2	1
Immigration/Citizenship	24				4	6	5	6	3
Communism	31			1	17	13
Census	2								2
Federalism	6					1	3		2
Civil Procedures	6						1	2	3
Regulation	33			5	1	4	6	15	2
Immunity	5						2	2	1
Military	6						3	2	1
Total:	128

DECADE:		1920s	1930s	1940s	1950s	1960s	1970s	1980s	1990s
TOTALS:	752	1	7	47	41	99	148	238	171

8.Case Win (W) / Loss (L) Breakdown by Category and Decade

1st Amendment

	1920s		1930s		1940s		1950s		1960s		1970s		1980s		1990s		TOTAL CASES	WIN %	TOTAL
	W	L	W	L	W	L	W	L	W	L	W	L	W	L	W	L			Wins	Losses
Obscenity					1		2	2	6	2	1	8	3	5		2	32	40.63%	13	19
Defamation							1		2				3	1		1	8	75.00%	6	2
Religion					4	2		1	4	2	2	3	11	3	4	3	39	64.10%	25	14
Press, Speech, Association		1	5		10	2	4		10		8	2	25	16	24	11	118	73.00%	86	32
TOTAL W/L:		1	5	0	15	4	7	3	22	4	11	13	42	25	28	17	197	66.00%	130	67
CATEGORY TOTAL:	1		5		19		10		26		24		67		45
WIN %:	0.00%		100.00%		70.00%		66.67%		70.00%		42.86%		64.18%		61.70%

Criminal Justice

	1920s		1930s		1940s		1950s		1960s		1970s		1980s		1990s		TOTAL CASES	WIN %	TOTAL
	W	L	W	L	W	L	W	L	W	L	W	L	W	L	W	L			Wins	Losses
4th Amendment					1				6	5	5	6	6	9	4	8	50	44.00%	22	28
Criminal Procedure			1		1	1	1	1	9	4	5	8	10	14	7	10	72	47.22%	34	38
8th Amendment										1				2	1		4	25.00%	1	3
Death Penalty									1		4	1		3	4	4	17	52.94%	9	8
Drugs							1		3	1	3	6	4	11	5	10	44	36.36%	16	28
Prison					2				1		4	3	4	2	5	6	27	51.85%	14	13
TOTAL W/L:			1	0	4	1	2	1	20	11	21	24	24	41	26	38	214	44.65%	96	118
CATEGORY TOTAL:	0		1		5		3		31		45		65		64
WIN %:	0.00%		100.00%		80.00%		66.67%		64.52%		46.67%		36.92%		41.00%

Civil Rights

	1920s		1930s		1940s		1950s		1960s		1970s		1980s		1990s		TOTAL CASES	WIN %	TOTAL
	W	L	W	L	W	L	W	L	W	L	W	L	W	L	W	L			Wins	Losses
Race					10	3	3	1	7		4	7	13	10	5	3	66	63.63%	42	24
Gender										1	14	4	7	5	7	2	40	70.00%	28	12
Federal												1	9	10	7	6	33	48.48%	16	17
State							1	1	4	1	14	4	7	7	4	1	44	68.18%	30	14
Voting Rights										1	1	3	2	1	5	3	16	50.00%	8	8
Privacy									1	1	2	1	4	2	1	2	14	57.14%	8	6
TOTAL W/L:					10	3	4	2	12	4	35	20	42	35	29	17	213	61.97%	132	81
CATEGORY TOTAL:	0		0		13		6		16		55		77		46
WIN %:	0.00%		0.00%		76.92%		66.67%		75.00%		62.96%		54.54%		62.22%

Governmental Authority

	1920s		1930s		1940s		1950s		1960s		1970s		1980s		1990s		TOTAL CASES	WIN %	TOTAL
	W	L	W	L	W	L	W	L	W	L	W	L	W	L	W	L			Wins	Losses
Union			1		2	2				2	4	1	1	1	1		15	60.00%	9	6
Immigrations/ Citizenship							1	3	4	2	2	3	3	3		3	24	41.67%	10	14
Communism					1		13	4	9	4							31	74.19%	23	8
Census																2	2	0.00%	0	2
Federalism									1		1	2			1	1	6	50.00%	3	3
Civil Procedures												1	1	1	2	1	6	50.00%	3	3
Regulation					2	3	1		3	1	3	3	6	9	2		33	51.51%	17	16
Immunity												2	1	1		1	5	20.00%	1	4
Military												3		2		1	6	0.00%	0	6
TOTAL W/L:			1	0	5	5	15	7	17	9	10	15	12	17	6	9	128	51.56%	66	62
CATEGORY TOTAL:			1		10		22		26		25		29		15
WIN %:			100.00%		50.00%		68.18%		65.38%		40.00%		41.38%		40.00%

TOTALS

	1920s		1930s		1940s		1950s		1960s		1970s		1980s		1990s		TOTAL WINS	TOTAL LOSSES
	W	L	W	L	W	L	W	L	W	L	W	L	W	L	W	L
TOTAL W/L:	0	1	7	0	33	14	28	13	71	28	76	72	120	118	89	82	424	328
CATEGORY TOTAL:	1		7		47		41		99		148		238		171		752
WIN %:	0.00%		100.00%		70.21%		68.29%		71.72%		51.35%		50.42%		52.05%		56.38%

Visit the ProCon.org community on: