Analysis: The State of the Court — May 2007 — Part II (Unanimity and Justice Kennedy’s Vote)
on May 7, 2007 at 10:22 am
Note: This is the second in a series of posts written by Tom Goldstein, with research by Jason Harrow, regarding the state of the Court at “Mid-Term.” The first post, regarding the state of the docket, is here.
During OT2005, the Court’s proportion of unanimous decisions was up and the number of five-to-four cases was down. All last Term there were only eleven five-to-four decisions (though that figure is skewed by four five-to-three rulings that could have been five-to-four if the Court had nine members the time of the ruling). By comparison, during the two previous Terms there were eighteen and nineteen five-to-four decisions. Several of the unanimous decisions involved significant social issues, such as Ayotte (abortion), FAIR (recruiting and gays in the military), and Wisconsin Right to Life (campaign finance).
Last Term’s experience, and the Chief Justice’s professed intention to push for greater unanimity, suggested that we might see a notable decline in sharply divided rulings from the Court. But to many observers, that seemed improbable because it asked too much of any Chief Justice. The Chief has a single vote on a closely divided Court. As Justice Scalia said when asked about the Chief Justice’s goals: “Lots of luck.†It is virtually impossible for him to persuade his colleagues – and persuasion is the only tool he has – to change their votes in such contentious cases for the sake of greater unanimity. These are weighty issues that Justices have fought over for decades. The Chief almost certainly wouldn’t change his own vote in such a case, and it’s doubtful that he could or would suggest even indirectly that someone else do so. It is not realistic to expect that his ascension would fundamentally change the dynamic on the Court.
If anything, the ideological divisions on the Court have grown more stark. Justice O’Connor was regarded as the “swing vote†not merely because she represented the ideological center of gravity, but because in a range of highly charged cases she might vote in either direction. With her departure and the arrival of the reliably conservative Justice Alito, the lines between the Court’s two wings are more brightly defined. In that circumstance, you would not expect that the disagreements within the Court would narrow. And indeed, they have not, as illustrated by the fact that dissenting opinions asserting that new decisions should or will be overturned have been issued by both the right (the Chief Justice dissenting in Georgia v. Randolph and the Texas death penalty cases) and the left (Justice Ginsburg dissenting in Carhart).
So far this Term, there have already been eleven five-to-four decisions – twenty-eight percent of the decisions for the Term. (At one point ending last week, six cases in a row were decided by a single vote.) At the same point last Term, the figure was three of fifty-two, or just six percent. As noted above, all last Term there were only eleven five-to-four rulings.
So far, there have been eight unanimous decisions this Term – twenty-percent of the decisions to date. At the same point last Term, 57% of the decisions were decided unanimously. That number is skewed to some extent by the fact that some close cases had to be reargued (and thus were decided later); by last Term’s end, 40% of the Court’s decisions were unanimous.
Indeed, it is difficult to find a significant non-business case this Term that was not decided by a five-to-four vote. (The closest example is probably Cunningham v. California, which was six-to-three.) Carhart, the recent death penalty cases, and Massachusetts v. EPA were all decided by a single vote. Again, that is the logical consequence of the Court’s composition and the kinds of cases it decides.
The most dramatic statistic relating to the five-to-four decisions is that Justice Kennedy has been in the majority in all of them. In five, he sided with the more liberal Justices. In three, he sided with the more conservative Justices. The remainder did not divide on ideological lines. Indeed, last week’s decision in United Haulers was only the second time in forty decisions that Justice Kennedy dissented. He has yet to author a dissenting opinion.
The data shows Justice Kennedy more frequently wielding a decisive vote and somewhat more frequently siding with the left. In the latter part of last Term, the Court had the same composition and issued eleven five-to-four rulings (there were ten cases, but LULAC had two separate five-to-four coalitions). Justice Kennedy was in the majority eight times. Seven involved ideological divisions: he sided with the more liberal Justices twice (both in narrow rulings – a portion of LULAC and his controlling concurrence in Rapanos) and the more conservative Justices in five cases.
Nonetheless, this is very likely to be a Term that labels Justice Kennedy as a conservative. By far, the cases that will define the Term are the pairs of cases involving race and abortion. Carhart has already been decided. The race cases are widely expected to be decided in favor of invalidating the programs and limiting the use of race in government decision making. The third most notable decision – if only because it is an election year – will come in the Wisconsin Right to Life electioneering case, which Justice Kennedy is likely to vote with the more conservative members of the Court as well.
One other notable data point has been the near absence of plurality opinions in significant cases. Rapanos is the only one that comes to mind. The fact the Court has been able to provide clear direction, even when closely divided, has certainly been a positive development.
I wanted to add one other point regarding my earlier post on the pace of the Court’s decision making. Although the total output of decisions has slowed, it is notable how quickly the Justices have decided such highly contentious cases. It seems likely that in previous Terms, we would have entered late June expecting a series of blockbuster rulings. There is every reason to believe that only the contentious late-argued cases – such as Wisconsin Right to Life and Defenders of Wildlife, as well as potentially Hein v. Freedom from Religion – will make it all the way to the end of the Term.
