The 5-4 Cases And Thoughts On Any New Nominee

By Tom Goldstein
on Jun 30, 2005 at 12:22 pm

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.