Slate's Dahlia Lithiwick offered her thoughts on the current Supreme Court term in yesterday's Washington Post Outlook section in an essay titled "It Isn't Tilting in The Same Old Ways." Lithiwick writes:

Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.

According to Lithiwick, "With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong" Really? As I recall, many court observers suggested last year's disproportionate number of ideologically divided 5-4 decisions was an artifact of case selection and the Court's docket. In an end-of-term wrap up for NRO, I noted that on many issues the Court was "closely divided, but not on traditional ideological lines." I further explained:

Many commentators suggest that there was an unusual level of rancor and division in the Supreme Court this year. . . . Such claims, like the proclamations of a conservative ascendancy, are overstated.

Only one-in-four decisions was unanimous, and one-in-three was decided 5-4. This is hardly an unprecedented level of division, however. The level of unanimity was even lower during the 2004-05 session. That term the number of 5-4 decisions also reached 30 percent (as it did in the 2001-02 session). If anything was unprecedented it was the unusually high percentage of unanimous rulings (45 percent), and low number of 5-4 decisions (13 percent) during Chief Justice Roberts's first term that inflated expectations. The 2005-06 unanimous rulings in cases challenging abortion restrictions and the Solomon Amendment were more unusual than the split decisions of the term just past.

This is not to deny the very real doctrinal divisions on the Court. The justices are closely split on many issues, ranging from criminal procedure and federalism to race and the status of unenumerated rights. SCOTUSBlog's analysis of the "rate of dissension" — a measure of the number of dissents per case — found the 2006-07 term the most divided in recent years, barely edging out the 2001-02 term, 1.82 dissents per case to 1.81. This and other measures of the Court's may be magnified by the Court's ever-shrinking docket, however. Where once the High Court heard 100 cases a term, the justices only accepted 72 for 2006-07. As the Court grants fewer cases, those that remain on the docket may be more difficult, contentious, and closely fought on the margin. The oral statements from Justices Ginsburg and Breyer delivering dissents in high-profile cases may have been unusual, but they were decidedly mild compared to some of the fiery statements from prior years, as when the Court handed down its decisions in two abortion-related cases, Stenberg v. Carhart and Colorado v. Hill.

I was hardly alone in making these observations, or in predicting that OT2007 would look much different than OT2006. Some individual decisions may have been a surprise, such as the Indiana Voter ID case or Baze v. Rees, but the overall trend is much like many anticipated

In my opinion, much of what we are observing in OT2007 is precisely what we should have expected with the confirmation of Chief Justice Roberts and Justice Alito. Both are "conservative" justices, to be sure, but both are "minimalists" as well, eschewing sweeping statements of grand principle to focus on the narrow questions presented in each case. This approach also facilitates Chief Justice Roberts' efforts to forge greater unanimity, as he did during his first term on the Court. Lithwick may think this is a "savvy" approach, and a "deflection," of larger issues. In my view, however, it is a principled approach to judging that properly leads larger political and ideological disputes to resolution by the political process.

All this said, the degree of unanimity on the Court should not be overstated. There will still be bitter 5-4 decisions. We may see a few this week, perhaps even today. But there have always been such cases, and there always will be. But we should not expect ideological 5-4 splits to be the dominant story of the Roberts Court.