Measuring “Divisiveness” in OT06
The following post is by Adam Chandler. It is another in our series of posts analyzing this Term’s statistics (which can be found here.)
With seven of the eight decisions handed down by the Supreme Court in its final week being split 5-to-4, indications are that it has been a particularly fractious year for the Justices. This post will attempt to assess the divisiveness displayed by this term’s decisions.
Using as a yardstick the average number of dissenting votes per case decided over the term, we note that the dissension rate is the highest it’s been in at least a dozen years. The average opinion this term garnered 1.82 dissenting votes. The most recent term with a rate about that high is OT 2001 with 1.81. (Under this metric, the level of divisiveness produced by two 7-2 decisions is the same as that produced by one 9-0 decision and one 5-4 decision.)
Divisiveness was seemingly at a recent low during October Term 2005, the first under Chief Justice Roberts. The Court had purposefully avoided taking on difficult cases as it was preparing for a mid-term transition from Sandra Day O’Connor to a new justice. As a result, a decision during that term carried, on average, only 1.21 dissenting votes.
But the underlying divisions of the newly-composed Court made their way to the forefront in October Term 2006. Cases on abortion, gender discrimination, race in education, campaign finance, and global warming were all on the table, and each resulted in a 5-4 split. Despite Roberts’s call for rulings on narrow grounds to build greater unanimity, a full third of the cases in his second term as Chief were decided by 5-4 opinions, the highest proportion in over a decade (see Ben’s post here about the 5-4 splits this term).
Not only were there more 5-4 decisions, but they also split in predictable alignments more frequently. Since OT 2000 six years ago, no term has produced a higher percentage of 5-4 cases decided in an ideological split (in which Justices O’Connor and Kennedy are considered along with the liberals and the conservatives). Nearly 80% of the 5-4 decisions this term split along traditional ideological lines, possibly indicating further entrenchment of both the left and the right.
These numbers point to what could be a mounting antagonism within the Court’s new composition, evidenced in some strongly-worded dissents and concurrences this week. Justice Scalia, never one to pen his dissents gingerly, recently mocked Justice Roberts’s plurality opinion in FEC v. Wisconsin Right to Life as “faux judicial restraint.”
But most of the heat is coming from the liberal wing. Justice Ginsburg’s reading of two dissents from the bench this term drew much attention and was widely noted as a sign of her increased frustration with the conservative majority. And on the last day of the term, an unmistakably aggravated Justice Breyer read two dissents, making him the fourth and last member of the liberal bloc to give an oral dissent in a significant case this term. In the school integration cases, he penned a 77-page dissent, twice as long as any other he’s written, and announced from the bench that “it is not often in the law that so few have so quickly changed so much.” Betraying feelings of either helplessness or indignation (and quite possibly both) among the liberals, he ended the reading of the last opinion of the term with “I must dissent.”
Adam – thanks much for this information.
A few comments:
1) Scalia was right: Robert’s opinion “Wisconsin right to life” WAS faux-restraint, but i’d bet it was strategically done. Unlike Scalia, Roberts seemingly has a well developed diplomatic sensibility, and i’d bet he knew that getting Kennedy on board required the use of less-strident language.
2) Breyer’s comment about “so few changing so much” reminded me that he himself was a player in just such a change: the court became clearly more liberal during the mid-90s, after he and Ginsburg were appointed. In my opinion, the court’s ideological outlook today is pretty much what it was circa 1993, after the appointment of thomas and souter: leaning to the right, but without five votes to overturn big precedents like roe v. wade.
-Steve Jaros
Comment by stevej — July 2, 2007 @ 10:16 am
Steve,
1)That doesn’t make sense. Kennedy JOINED Scalia’s opinion to overturn McConnell and dissented from the original opinion in 2003. I can see your point in a case like Hein, but Roberts had nor reason to keep Kennedy on board in WRTL. Kennedy was already on board with overturning McConnell, before Roberts even showed up.
Roberts has now participated in 2 CFR decisions and has been incremental in both. Remember, he was the only conservative to join Breyer’s ode to stare decisis in Sorrell last year.
I think it’s probable that Roberts is what he says. He prefers to limit and weaken precedents and won’t overrule unless the question is squarely presented and the decision requires it.
Comment by rufus peckham — July 2, 2007 @ 1:18 pm
Rufus Peckham writes:
“I think it’s probable that Roberts is what he says. He prefers to limit and weaken precedents and won’t overrule unless the question is squarely presented and the decision requires it.”
This is an interesting idea, and I can’t help but wonder if it’s supported by the recent acceptance of a number of CVSG’d cases which were rejected by the SG as “poor vehicles”. Is the SG, perhaps, looking at cases in an absolutist way (”this case could/couldn’t be used to overturn/set precedent”) while the Roberts court look at issues more granularly (”just the facts, ma’am, don’t worry about the sweeping precedents”)?
No idea – just thinking out loud.
Comment by David.Huberman — July 2, 2007 @ 2:11 pm
It’s funny that Scalia calls Roberts’ approach “faux judicial restraint.” There’s a long-standing tradition in the law that judges avoid overruling precedent if they can avoid it. By one measure, the mark of conservatism is to rule narrowly, and limit decisions to the facts presented. “If it is not necessary to decide, then it is necessary not to decide.” By contrast, Justices Scalia and Thomas are activists — albeit, activists with an ideologically conservative viewpoint. Once you start tossing out old precedents, the result can be conservative or liberal, depending on the bias of the majority.
It’s a highly dubious proposition that the Court became “clearly more liberal during the mid-90s.” Justice Ginsburg is a bit more liberal than Byron White, Justice Breyer is a bit less liberal than Harry Blackmun (as he had evolved). Looking at it holistically, the Court had about the same ideological balance after their arrival as it had before.
Comment by Marc Shepherd — July 2, 2007 @ 3:51 pm
Rufus, i concede the point.
I was thinking of the school-diversity case (in which kennedy wrote a separate concurrence) and got that confused with WRTL.
Steve Jaros
Comment by stevej — July 2, 2007 @ 4:23 pm