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Where'd the 5-4 Splits Go?

Linda Greenhouse's exploration of the relative paucity of 5-4 decisions thus far this term generally overlooks the most likely and plausible explanations: Last year's high proportion of 5-4 splits along ideological lines was itself and outlier and an artifact of the OT2006 docket. Last term had a relatively large proportion of exceedingly close and difficult cases, many of which concerned contentious, high-profiled issues. This term certainly has high profile cases as well, some of which have already been decided, but they have not been decided along traditional "conservative" and "liberal" lines. As a consequence, OT2007 is looking more like Chief Justice Roberts' first term on the Court, OT 2005, than it is OT2006.

Greenhouse's suggestion that conservatives on the Court have been chastened, and this explains the apparent lack of ideological division, is particularly unconvincing to me for two reasons. First, the big decisions in high profile cases (voting rights, child porn, lethal injection, Medellin), have largely gone in a "conservative" direction, just with larger majorities. So if any of the justices have changed their approach — and I am skeptical that any have — it would be those liberal justices who are joining conservative majorities. Indeed, one plausible theory (albeit not one I am endorsing) is that Justice Stevens has moderated his position in several cases so as to stay with Justice Kennedy, in the hope that he can have more influence on the swing justice in other cases.

Another problem with Greenhouse's suggestion that the conservatives have tempered their approach is that the conservative 5-4 decisions last term were not particularly aggressive or ground-breaking (a point I've made before). Few of the 5-4 decisions in OT 2006 made significant changes in the law (and the 5-4 decision that broke the most new ground, Massachsuetts v. EPA, went in a decidedly "unconservative" direction). Moreover, as Greenhouse herself noted at the time, several of the Court's conservatives expressed disappointment that the Court did not go farther.

OT2007 is not shaping up to be any more or less "conservative" than OT2006 (at least not yet). It just features a different line-up of cases, which are more conducive to larger majorities and less spirited dissents. This could certainly change — we have lots of cases to go, and plenty of opportunities for fiery divisions. Nonetheless, if I were to make a prediction it would be this: History will reveal that OT2006 was the outlier on the early Roberts Court, not OT2007.

UPDATE: Ed Whelan adds some thoughts here.

FantasiaWHT:

that the conservative 5-4 decisions last term were not particularly aggressive or ground-breaking


Isn't that the very definition of conservative?
5.23.2008 8:59am
eric (mail):
<blockquote>
conservative 5-4 decisions last term were not particularly aggressive or ground-breaking
</blockquote>

But wait, I thought women would be dying in the street from botched home abortions and Bush would be peering in my window because of this "conservative" court?
5.23.2008 9:32am
no legal training:
Um, shouldn't one wait for the end-of-term, they-took-a-while-to-sort-out decisions before drawing any conclusions about the frequency of 5-4 splits?
5.23.2008 9:40am
Bored Lawyer:

one plausible theory (albeit not one I am endorsing) is that Justice Stevens has moderated his position in several cases so as to stay with Justice Kennedy, in the hope that he can have more influence on the swing justice in other cases


Does anyone really believe that the Justices behave in such a Machiavellian manner?

And doesn't such behavior (if it exists, which I doubt) violate the judge's oath of office? If the Judge or Justice truly believes that the Constitution or the law requires one result, can he vote the opposite way so he can then sway another vote in another case?
5.23.2008 10:21am
ithaqua (mail):
"Does anyone really believe that the Justices behave in such a Machiavellian manner? "

I think the evidence shows that, while the conservative Justices are concerned with correct interpretations of the law, no matter whether or not they like the result, the libs are only concerned with 'correct' (ie, left-wing) results. This naturally gives the libs a long-term viewpoint (they want to reshape American society in their own God-hating image) and makes them less concerned with the result of any specific case. So yes, they do indeed accept strategic defeats in order to better position them for future 'victories'.

"And doesn't such behavior (if it exists, which I doubt) violate the judge's oath of office?"

Yes. But liberals can't be trusted to keep their oaths, because they deny the Guarantor of such oaths.

"If the Judge or Justice truly believes that the Constitution or the law requires one result, can he vote the opposite way so he can then sway another vote in another case?"

Liberals can.
5.23.2008 11:08am
Dave Hardy (mail) (www):
1. In the one year when I did serious Court watching, I noticed that 5-4s tended to come down late in the term. I assume close cases require more back-and-forth and so take longer to decide. Halfway thru the term (in terms of decisions rendered) is a little early to make a call on how many 5-4s there will be.

2. The book The Brethren pointed out a situation (with regard a Court of a few decades ago, and I forget the Justice involved, let alone whether he was considered liberal, conservative, or neither, of the practice described here. The Justice said that he'd joined with another, swing, Justice on several cases only because he'd need his vote later on other cases and wanted to be on his good side.
5.23.2008 11:58am
bornyesterday (mail) (www):

1. In the one year when I did serious Court watching, I noticed that 5-4s tended to come down late in the term. I assume close cases require more back-and-forth and so take longer to decide. Halfway thru the term (in terms of decisions rendered) is a little early to make a call on how many 5-4s there will be.


Probably not just the back-and-forts, but the extra time it takes to write multiple dissenting opinions which reference points made in the majority and dissenting opinions.

I have to admit that I'm curious how CJ Roberts would approach a 7-10 split.
5.23.2008 12:07pm
wooga:

one plausible theory (albeit not one I am endorsing) is that Justice Stevens has moderated his position in several cases

Stevens has always had his own mind about things. Merely because he tends to show up on the same side as Souter does not mean he follows a Souter jurisprudence (like comparing Rehnquist with Thomas - they may vote the same way, but get there from different paths). So the above theory sounds to me like somebody just noticed that Stevens has a peculiar traditionalist streak in him, and cynically thinks it's an affectation.
5.23.2008 12:21pm
Henry Chew (mail):
"So if any of the justices have changed their approach -- and I am skeptical that any have -- it would be those liberal justices who are joining conservative majorities. Indeed, one plausible theory (albeit not one I am endorsing) is that Justice Stevens has moderated his position in several cases so as to stay with Justice Kennedy, in the hope that he can have more influence on the swing justice in other cases."

Well, the liberals justices like Breyer and Stevens are really foxes, and their vote on some of these opinions may have moderated the majority opinion. I sense this is more like a chess move as the liberal camp attempt to diminish the power and influence of Justice Kennedy.
5.23.2008 1:20pm
Jacob Berlove:
Professor Adler,

I don't see how one can say Justice Stevens' frequent voting with conservatives this year could be due to an attempt to influence Justice Kennedy given Stevens' unnecessary concurrence strongly implying that he'd just flat out rule the death penalty unconstitutional given the right case. That doesn't seem like a very smart strategic move to me.
5.23.2008 5:06pm
Jacob Berlove:
One wild card in this area is Santos. I can't even remember the last time a case argued in October hasn't been dismissed or decided this late in a term. We may have a better feel for what's going on once the decision in Santos is relesed.
5.23.2008 5:09pm
TomB (mail):
This is such a non-story, or at best an incomplete story. Does Linda have a quota of stories she must submit before her golden buy-out?

To use a sports analogy, she's calling the game and writing the analysis before the time runs out (on in the 7th innning, if you prefer). Why not wait until the end of the term, and for all the contentious cases that tend to bunch up at the end of the term?

Jeez, this is first class reporting from a first class paper??
5.23.2008 6:06pm
Terrivus:
Well, the liberals justices like Breyer and Stevens are really foxes, and their vote on some of these opinions may have moderated the majority opinion.

Not really. No Justice with five votes is going to substantially modify his/her opinion to garner additional, superfluous votes. There might be slight modifications, but in the tradeoff between (a) changing one's opinion to something one is not comfortable releasing in one's own name, just to show more "consensus" via additional votes, and (b) not doing so and getting merely 5 votes, (b) will win every time.
5.23.2008 10:07pm
Rochesterian (mail):
Does anyone other than myself take issue with the fact the nine Justice rule has been law since the 1870s?

I know some of you in the established D.C. firms feel warm and fuzzy being part of the inner-circle; but damned, the population has leap-frogged over the past 140 years to the extent I think this antiquated number is cheating too many people of their day in court.

The minimum number of Justices should be 35.

Aren't you all sick to death of guessing their individual quirks and preferences? It's bad enough that we don't learn about their respective stays in mental hospitals until post-mortem (Rehnquist circa-81).

Our Supreme Court is a big building. There's plenty of room for 35 Justices; besides, more cases would be heard.
5.23.2008 11:12pm
Mary Katherine Day-Petrano (mail):
Rochesterian, I don't think anyone here likes your idea. But you may have raised an interesting point. The population has dramatically increased, yet the Justice # hasn't. It would seem to be a dilution of the ability of the Judicial Branch to serve as a check and balance on the other two Branches -- perhaps a Separation of Powers issue?

Here's another interesting thought. Poor Chief Justice Roberts keeps telling the GSA and Congress the federal courts are woefully underfunded and Judges and Justices woefully underpaid, to no avail. Imagine the possibilities of suggesting an increase in the # of Supreme Corut Justices:

1. It would be a GREAT opportunity to increase the Judiciary budget all the way around -- raise Judge/Justice salaries, more lower/appeal Judges, more clerks, better technology, a win-win circumstance;

2. Federal Judges would no longer be having to allow due process to rise or fall on whether the Judge is willing to dig into his/her own pocket book for accoutrements to the Courtroom, access infrustrusture, etc, but would have a real spending budget impervious to the due process flaw;

3. Random assignment of 9-Justice panels could occur ending the bets placed on who will get cert, whether the decision will be 5:4, whether Justices and clerks will be overworked, etc.

4. Heck, with an increased budget to go along with the increased # of Justices, perhaps the Judiciary might even finagle a few more of those really cool new Courthouses (e.g. Orlando, waaay cool with those gorgeous stained-glass windows)!
5.23.2008 11:50pm
Henry Chew (mail):
"Terrivus:
Not really. No Justice with five votes is going to substantially modify his/her opinion to garner additional, superfluous votes. There might be slight modifications, but in the tradeoff between (a) changing one's opinion to something one is not comfortable releasing in one's own name, just to show more "consensus" via additional votes, and (b) not doing so and getting merely 5 votes, (b) will win every time"

I disagree, that's only the case if justices on both sides don't care about consensus, and all five votes are solid five votes. Just imagine a justice on the other side come out with a opinion that doesn't change the end result but with a way of reasoning that suits some justice on the original five.

Moreover, politics in the court matter, you may have a majority opinion of 5 in one case but you may need the vote of a justice that's in the minority in the other case, I see no reason why justices don't play the game of quid pro quo especially when they're on the same result for one case.
5.24.2008 4:56am
davod (mail):
What is the reason we have nine justices on the Supreme Court?
5.24.2008 5:28am
Rochesterian (mail):
Under the Circuit Judges Act of 1869, the number of Justices was set at nine (the Chief Justice and eight Associate Justices), where it has remained ever since.

Most of the folks who post here are very much engrained in the inner-circle of the nine Justices. The notion of increasing the number of S. Ct. Justices would rock these "Tier-1-ers" off their tipsy, dry-rotted row-boat into the cold and turbulent "Sea of Reality."

Betcha dollars-to-donuts OBAMA seeks to increase the number to at least 15 on or shortly after Inauguration Day.
5.24.2008 2:12pm
r.friedman (mail):
I compared the rate of opinion release for this term with the past 2 terms, and the Justices are about 10 decisions behind their previous pace. Since the two acknowledged causes of late release are (1) the need to modify an opinion to retain a majority in its favor, and (2) the extra time required for dissenting opinions to be written and responsed to, I predict we will have a dump of 5-4 opinions in June.

Whether or not it results in a 5-4 decision, consider US v. Santos, the only remaining undecided case from the October sitting. The Court took the case to decide whether the money laundering statute applied to the gross or net profits of a criminal enterprise. They clearly anticipated a laugher, an exercise in mere error correction. But at oral argument it turned out that the real issue was whether the money laundering had swallowed all low-sentence gambling offenses (and a lot of others) and made them subject to 10-year sentences. Given that the case was up on federal habeas (Santos had lost the case on his appeal, then the 7th Circuit ruled in a another case that only net profits could be laundered), and the broader question had not been briefed, the case was a likely candidate for a DIG, but from the argument 4 justices were ready to overturn on the narrower question, and as long as 4 justices take this position, the Court's internal rules prevent a DIG. So regardless of how it comes out, this could be a contentious case.

Or take the only case left from November, Boumedienne. Since Kennedy has not yet written from that sitting, everyone believes that that case will be 5-4 or some further splinter (some have suggested a Booker/Fan Fan-like split where K+4 liberals find a right but K+4 conservatives find it not violated).

I think Linda knows all this too, but she's a sort-timer and just cranked out a superficial analysis.
5.25.2008 8:53am
Rochesterian (mail):
r.friedman SAID:
I compared the rate of opinion release for this term with the past 2 terms, and the Justices are about 10 decisions behind their previous pace.

Has it ever dawned on you the reason our S. Ct. is behind is the fact 9 judges can't possibly keep up with current number of complex case-load? As it stands, Kennedy's ticker is on the brink, Roberts has epilepsy (so do I, it means SLOW DOWN)).

With all do respect, stop the useless small-talk of the who/what/when/why/where/how of this year's term and start advocating for a bigger court so MORE cases can be heard MORE timely. Maybe with a S. Ct. Justice increase, every day folks (not D.C. Ivory-Tower out-of-touchers) would not be so inclined to believe their government is so freggin' useless.
5.25.2008 2:41pm