Term analysis: A “split-the-difference” Court

In the annual popular ritual of judging the Supreme Court’s Term, pundits and analysts of various stripes have concluded — more or less — that this has been a 4-1-4 Court, with Justice Anthony M. Kennedy rising to new eminence as “the decisive swing vote” in the middle, essentially replacing Justice Sandra Day O’Connor in that role. That, of course, is an arguable position, but it does tend to obscure the complexity of the voting patterns and results as the Term unfolded.

While some commentators, appropriately, have been tentative about drawing firm conclusions until more is known about the Court’s two new members, there is a discernible character to this new Court that simultaneously goes beyond the simplistic judgments about Kennedy and locates some characteristics that may well endure as the “Roberts Court” develops further.

That character may be summed up this way: this is a “split-the-difference Court.” The idea, and the phrase, originate in the persuasive perspective of J. Harvie Wilkinson III, a judge on the Fourth Circuit Court in Richmond (and one of the federal judiciary’s more thoughtful jurists). It is not based on a review of the 2005-2006 Term, but rather on judgments he makes about the last five years of the “Rehnquist Court.”

His essay, “The Rehnquist Court at Twilight: The Lures and Perils of Split-the-Difference Jurisprudence,” appears in the Stanford Law Review (58 Stanford Law Review 1969 [2006]). The text of the essay can be found here. (Thanks to newspaper columnist George Will for bringing this piece into fuller public display. This post will not do full justice to the piece; it needs to be read in its entirety.)

Before overlaying this perspective on the 2005-2006 Term (that will come shortly), Wilkinson’s thesis needs to be summarized.

According to Judge Wilkinson: as the Court entered the 21st Century, there was a discernible shift in its approach. “The Court sought to tackle the most controversial issues before it by splitting the difference. Few courts have ever raised this form of jurisprudence to such an art form.” It involves splitting-the-difference in result, in reasoning, and in the way a Court majority adapts to “the polar positions” of national debate about a key issue.

From several decisions that Wilkinson analyzes, here are examples that illustrate each of his categories: the Michigan affirmative action decisions in 2003 — splitting-the-difference in result; the 2004 decision in the war-on-terrorism case, Hamdi v. Rumsfeld — splitting-the-difference in reasoning; and the gay sexual privacy decision in 2003, Lawrence v. Texas — splitting-the-difference on an issue of national controversy.

As the judge sums up: “Splitting the difference…enabled the Rehnquist Court in the final years to craft narrow rulings that reflected, by and large, the temper of the times… Splitting the difference is above all an act of compromise. If the wheels of national life are often greased with compromise, courts should not themselves shy away from seeking it.”

Wilkinson, after recounting the positive side of this approach, goes on to warn of its perils. “Splitting the difference,” he writes, “allows democratic freedoms to be eroded incrementally, especially since the propelling force behind the Court’s gradual encroachments are the Court’s own prior pronouncements.,,,Splitting constitutional differences is…more likely to be grounded in policy and wisdom…{This approach involves] the slow accretion of authority….There is a thin line between the unabashedly pragmatic exercise of splitting differences and the practice of politics itself.”

Using this thesis as a caliper to measure the 2005-2006 Term, one can get closer to what the “Roberts Court” is — and what it is becoming.

Take, as a beginning example, the one ruling in the Term that stands above all others in national importance: the war-on-terrorism case, Hamdan v. Rumsfeld, decided on the final day of the Term. For all of its boldness in confronting President Bush and his notions of the “unitary Presidency,” the Hamdan decision decidedly splits the difference — in result, in reasoning, and in staying between “polar positions.” The Court did not reject the President’s “inherent authority” argument, but skipped over it; it avoided confrontation with Congress over its power to curb courts’ jurisdiction; it relied on Congress’ authority in military justice as controlling; and it eschewed international law and relied instead on domestic statutory command.

There is another war-on-terrorism result that often gets overlooked, because it did not involve a final decision: the Court’s decision in April not to hear the challenge by a U.S. citizen, Jose Padilla, to his detention and longterm confinement as an “enemy combatant.” But in declining to hear the case, the Court split the difference between embracing presidential power and having the courts used by an Executive willing to shift its handling of terrorism suspects when it was about to lose ground in the courts.

Consider another, very important decision: in the Texas congressional redistricting case. The Court left open the theory that partisan gerrymandering may go too far but did not encourage further debate about it, it paid tribute to legislative supremacy in this field to displace judicial result, and it made modest use of judicial authority to protect minority voters.

In three high-profile cases on criminal law, the Wilkinson perception holds: Hudson v. Michigan, on the use of evidence gathered after a violation of the police “knock-and-announce” rule, Georgia v. Randolph, on the scope of consent to a police search; and House v. Bell, on the treatment of evidence that may show a convicted individual was innocent of the crime. In each, the Court resisted the extremes that were asserted by some of the Justices, and kept the outcome somewhere near the middle of judicial theory and practical outcome.

The pattern is the same in the Vermont campaigm finance cases, in the major ruling on the Clean Water Act (Rapanos v. United States), and in the surprisingly narrow ruling on abortion rights in Ayotte v. Planned Parenthood.

Of course, in several of those actions, one can readily see the key role of Justice Kennedy — writing for a shifting majority, or being the object of conspicuous effort to hold or attract his vote. But the complexity of the decisions suggests a dynamic of difference-splitting involving a number of Justices, with a clear — and differing — majority working to avoid extremes.

If splitting-the-difference is the dominant judicial ethic in this Court, it may be the result more often of necessity than of choice. When there are such pronounced differences in judicial philosophy within the Court, as there clearly are, “massing the Court” for an outcome necessarily involves reaching for something that approximates the middle.

This puts a premium on a Justice or Justices who might be capable of submerging otherwise-strong personal philosophy in the search for common ground, or perhaps the least common denominator. Kennedy, of course, is demonstrably capable of that, but so is Justice John Paul Stevens and Justice Stephen G. Breyer, and, now and then, Justices Ruth Bader Ginsburg and David H. Souter. There are signs that Chief Justice John G. Roberts, Jr., may be inclined in that direction, too.

What might emerge, then, is an array on this Court of looser coalitions — Stevens, Ginsburg and Souter on the more liberal end but not immovably so, Kennedy, Breyer and the Chief Justice forming something of a pragmatic middle, new Justice Samuel A. Alito, Jr., drawn to the conservative side but not totally ready to line up with the two predictable occupants of that bloc, Justices Antonin Scalia and Clarence Thomas.

That would be a less predictable Court. But, perhaps, not a Court very much different from the one that sat in the concluding years of the Rehnquist era, as portrayed by Judge Wilkinson.