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.
2. Batting Average Recap
|Decade Ending December 31
||Total Number of Cases||Number of ACLU
- Time Period CoveredThis 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 CasesThe cases chosen were where the ACLU was shown by US Supreme Court documents or records to be:
- a party, or
- the attorney of record, or
- 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
- 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.
- 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.
- 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.
- 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
5. Voting Record of the ACLU in the US Supreme Court by Decade
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
|Press, Speech, Association||118||1||5||12||4||10||10||41||35|
8.Case Win (W) / Loss (L) Breakdown by Category and Decade