The 5-4 Cases And Thoughts On Any New Nominee
Earlier today, we posted the annual statistics on the Term. I thought I would take a closer look at the 5-4 cases.
(Note: in this post, I’m using the term “conservative” as shorthand for “more conservative” and to refer to the Chief, and Justices O’Connor, Scalia, Kennedy, and Thomas. And I’m using “liberal” as shorthand for “more liberal” and to refer to Justices Stevens, Souter, Ginsburg, and Breyer. Those particular labels can obfuscate more than they illuminate in some contexts – in fact, the data underlying this post makes that very point – but they are useful shorthand for a blog post.)
In the 5-4 cases, the diversity among the majorities was remarkable. Fourteen different combinations formed the majority in twenty-four cases. Ten 5-4 majorities occurred in only once. Every Justice was in the majority in between twelve and fourteen 5-4 cases.
The number that jumps out at you is that the Court’s conservatives formed a 5-4 majority only five times. (Extrapolating from previous terms, the twenty-four 5-4 opinions ordinarily would produce ten to fifteen cases with the conservatives forming a majority.) In eight cases, one of the conservatives “defected” to form a majority with the liberals – four by O’Connor; three by Kennedy; and one by Scalia.
But the liberals were hardly a uniform block. In five different cases, four of the conservatives formed a majority with one of the liberals – twice by Breyer, and once each by Stevens, Souter, and Ginsburg.
But the statistics in the previous paragraphs tend to distract attention from the importance of the cases involved. The bottom line is that the cases in which the liberals secured a majority were substantially more significant than those composed entirely or principally of the conservatives.
None of the five decisions in which the five conservatives composed a majority are truly significant. Two – Pace and Dodd – are reasonably important habeas procedural cases. But that’s about it.
Three of the decisions in which one liberal Justice joined four conservatives were important, although not Earth shatteringly so. The most significant is Van Orden in which Justice Breyer joined the same result as the majority, but his opinion was relatively narrow and McCreary County (in which Justice O’Connor joined the liberals) is more important. Two other significant cases are Exxon v. Allapattah (diversity jurisdiction; Souter) and Livestock Marketing (government speech; Breyer).
Contrast the truly significant constitutional cases in which the four liberal Justices formed the core of the majority: McCreary County; Kelo; and Roper. Add to that Raich, which was six-to-three. And also add San Remo, which we don’t count as a 5-4 case, but is notable because only four of the conservatives joined in an opinion suggesting that Williamson County was wrongly decided.
Several other reasonably significant cases – including all of the Term’s significant 5-4 civil rights cases – had the four liberal Justices at the core of the majority: Jackson v. Birmingham (Title IX retaliation), Rompilla (death penalty ineffective assistance), Spector (ADA and cruise ships), and Smith v. City of Jackson (ADEA disparate impact).
It’s worth pausing to think about what these decisions mean for the selection of a new Chief Justice, should William Rehnquist retire. It seems obvious that the President is going to nominate someone who will in all likelihood vote as the Chief has in the great majority of cases. But this Term’s decision point out the significance for conservatives of a having someone in that seat who can serve as a leader – someone who excels at persuading his colleagues. Purity of ideology won’t produce a winning majority.
Of all the candidates to replace the Chief that are frequently discussed, the person who probably fits that model best is J. Harvie Wilkinson, III. He’s widely recognized from his time as Chief Judge of the Fourth Circuit as simultaneously a solid conservative and true gentleman, someone who strives with frequent success to build bridges among his colleagues.
5-4 Cases and Thoughts on Any New Nominee
I have this post up on the main SCOTUSblog….
Comment by The Supreme Court Nomination Blog — June 30, 2005 @ 12:24 pm
Excellent analysis, Tom.
TG responds: really nice of you to write, thanks.
Comment by Steve — June 30, 2005 @ 2:50 pm
The 5-4 Cases:
Tom Goldstein takes a look.
Comment by The Volokh Conspiracy — June 30, 2005 @ 2:54 pm
Hello,
I think what you describe is incorrect, the correct description of the makeup of Supreme Court would be that the core bloc is made up of swinging moderates.
Or it would be more accurate to say the philosophy of “moderation” is far more divisive and in some ways causing the polarization of America in politics.
Which do you prefer, a moderate that can never be nailed down satisfactorily or an ideological judge that’s quite consistent in his views?
Think long and hard on that one, kids.
Comment by Dan — June 30, 2005 @ 3:28 pm
More SCOTUS speculation
More on the greatest parlor game for political addicts. From around the sphere: SCOTUS blog takes a look at 5-4 cases Ankle Biters note the libs are “preparing for war”, despite all those warm fuzzies everyone had a few weeks…
Comment by ConservativeOutpost — June 30, 2005 @ 3:43 pm
Fascinating breakdown and good analysis, though I wonder a bit about the “payoff” line. That is, while there is no reason to argue against a “leader” as CJ, is there much reason to imagine that would matter? That is, under Rehnquist at least, the open secret is that the Justices do not really work much together on cases.
Perhaps that only affirms your point–any change from a culture where the conferences are for headcounting and opinion assignment to one where the Justices actually engage each other on the substance of the cases would take a strong leader indeed to effect.
But it might be just as plausible to conclude that the culture of the Court is such that the 9 members will do their work in relative isolation no matter the personality of the Chief, and so it would not be worthwhile to overvalue “leadership” qualities among the virtues one would look for in a candidate for the post.
Comment by Fr. Bill — June 30, 2005 @ 4:00 pm
Tom,
Just wanted to echo the excellent work sentiment. You’ve done a wonderful job of breaking the info down into a very easy to read, and cite, form. Keep up the great service.
TG responds: Eric – thanks so much. That’s incredibly kind of you to write. I hope that readers are checking out your blog as well.
Comment by Eric Wright — June 30, 2005 @ 4:06 pm
Dan: I’m not sure I prefer either one. “Crazy swingin’ ad hoccers” would be a good name for a rock band (/Dave Barry) but is not the way to go for useful guidance from the Court. After all, we want _less_ litigation on settled matters, and more confidence that right answers won’t be overturned by bad facts. Also, that bad decisions are not going to go away, so we can go about fixing them other ways.
Ideological judges “consistent in their views” have not done the court any good lately, in my view. Thomas is consistent (above all he is consistent). Some of the “more liberal”s have been consistent in expanding certain government power; great. Scalia’s consistent when it counts; he’s out to harm the people he hates, help the people he likes (I kid; only not exactly. See my blawg for what I mean).
Tom’s point, I think, is that Warren got an 8-0 Court for Brown v. Board. A Chief who is not just a heavyweight but a persuasive heavy hitting intellectual, one who will swing the Court in their direction, as Stevens has lately had the Court swing towards him, would be a lasting legacy for a President. I don’t believe that Bush could successfully nominate such a person who was an ideologue who would help him politically. That’s well and good.
I’d like to see someone who is politically tolerable to most Republicans but who will tear the far right a new one on the religion front. Rehnquist’s replacement should _not_ have his facile, ahistorical and pro-majoritarian bent on matters of God.
They don’t have to be popular, they just have to engender respect in their commitment to the law and to reason (although compassion wouldn’t hurt).
Comment by Eh Nonymous — June 30, 2005 @ 4:13 pm
This is only surprising if you regard O’Connor and Kennedy as “conservative!” Kennedy used to have some credentials as such, but after the New London case I’m not so sure…..
Comment by Jonathan — June 30, 2005 @ 5:08 pm
Ditto what Jonathan said.
From my point of view there are three conservatives, four liberals, and two confused souls (O’Connor and Kennedy).
Given the retirement rumors that exist, if Rehnquist and O’Connor are replaced by real conservatives (as oppossed to Gonzalez), there will be four and four with Kennedy in the middle.
Now if we could get one of the lefties to resign sometime, then we could truly have five conservatives (Scalia, Thomas plus three new ones).
Comment by Kent — July 1, 2005 @ 9:32 am