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Why So Few 5-4 Decisions?: Linda Greenhouse has an interesting article in the New York Times reporting on and speculating about the cause of the very surprising number of 5-4 cases at the Supreme Court so far this term: So far only 1, and in a statutory case.

  Some of Greenhouse's possible explanations strike me as plausible, although some strike me as quite unlikely (such as her theory that Chief Justice Roberts was chastened by a critical paragraph in Richard Posner's new book). My own speculation is that part of it is just a coincidence; a lot of cases decided so far this term were just lopsided by nature. Also, I would guess that part of it is the Justices settling in a bit with each other and realizing that they need to pick their battles more carefully than they did last Term.
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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.

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Is OT2007 Much of a Surprise?

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.

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5-4 Split Watch:

The Supreme Court handed down two decisions today, one of which was a 5-4. As of today, that means that only five of the Court's 56 decisions have split 5-4 thus far. If one throws in the Court's 5-3 decision in Stoneridge and the Court's two 4-4 splits, that is still only eight decisions, or 14 percent of the Court's decisions. Only if the Court were to split 5-4 in all fourteen of its remaining cases could it reach last term's total of twenty-two 5-4 decisions, but this would still fall short of the 33 percent mark OT06.

Fourteen more 5-4 decisions is unlikely, but we will almost certainly see quite a few. (My guess is seven.) While it is typical for the Court to release a disproportionate share of 5-4 decisions at the end of the term, half of the pending cases are from the April term, and four more are from March, so not all of the cases remaining are close calls. In any event, with Heller (Second Amendment), Exxon (punitive damages), Kennedy (death penalty for child rape), and Davis (BCRA "millionaire's amendment) still in the queue, there will be plenty of opportunities for sharp disagreement among the justices.

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5-4 Split Watch:

The Supreme Court handed down five more opinions today. SCOTUSBlog has the details. Only one of the five, Kentucky Retirement Systems v. EEOC, was 5-4, and it produced an interesting line-up. Justice Breyer wrote the majority opinion, joined by the Chief Justice and Justices Stevens, Souter and Thomas. Justice Kennedy filed a dissenting opinion, joined by Justices Scalia, Ginsburg, and Alito. Also worth noting is that the Court's preemption holding in Chamber of Commerce v. Brown was written by Justice Stevens for a seven justice majority. Only Justices Breyer and Ginsburg dissented.

With today's decisions, the percentage of cases decided by a 5-4 margin this term is below 15 percent. With only ten more cases to go, it seems this term's level of unanimity, and relative lack of ideological division, may resemble OT2005 more than OT2006. Of course, some big cases remain in the queue, so we'll have to wait until next week to know for sure.

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5-4 Split Watch:

Three more decisions were handed down today. One, Sprint Communications Co. v. APCC, was 5-4. In that case, which concerned standing for assignees, Justice Kennedy joined Justice Breyer's majority opinion along with the other three liberal justices.

The other two cases were decided 8-1 and 6-3. Of note, in the latter case, Greenlaw v. United States, Justice Alito dissented joined by noted conservatives Justice Stevens and Justice Breyer (in part).

UPDATE: As a commenter notes, the justices in Greenlaw actually split 7-2. Although Justice Breyer joined three-fourths of Justice Alito's dissenting opinion, he concurred in the judgment of the Court.

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