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Divisiveness by the numbers: A look at OT 2007

Last Thursday marked the end of the Supreme Court’s October Term 2007, and once again, Court-watchers are looking to describe the overall theme of the term. Last year, with fully a third of opinions splitting 5-4 — and a vast majority of those splits coming along ideological lines —  the new divisiveness of the Court provided the major story. This year, a seeming lack of that similar divisiveness has become the prevailing story line, with various commentators attributing it to liberal capitulation, Chief Justice John Roberts crafting narrow, moderate opinions which could attract bipartisan majorities, the Court retreating from political posturing to a more lawyerly role and even simply that the cases this term have not been as ideologically fraught as those of last year. This post attempts to analyze the situation: was OT 2007 really less contentious than OT 2006?

One way of measuring dissent is to look at “average dissenting votes”: total dissenting votes divided by total opinions. 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 — four dissenting votes over two cases. Using this approach, the dissention rate of OT 2007 was 1.85, higher in fact than OT 2006. Opinions in 2007 involved, therefore, the most dissent in at least the past dozen years. (See a graph of average dissenting votes from OT95 to OT07 here.)

At first blush, this high dissention rate seems like a very surprising number; after all, opinions decided over four dissenting votes declined from 24 last term (33% of the Court’s opinions) to 14, or 20%, of opinions this term (this includes Warner-Lambert and Tom F., both affirmed by an equally divided Court, which is itself a relatively rare occurrence). However, a couple of phenomena can help to explain this discrepancy.

First, the make-up of the current Court (two groups of four Justices each creating a relatively consistent “liberal” or “conservative” bloc, with one “swing vote”) focuses us on 5-4 decisions. When looking at opinions with three or more dissenting votes, however, OT 2006 and OT 2007 are nearly identical: 27 cases in ’06, 24 cases in ’07. Of course, in ’06, those cases trended overwhelmingly towards 5-4 splits, while in ’07 they were more equally distributed, so this constancy amongst those opinions with three or more dissents can only account partially for the high dissention rate.

The more striking variation from ‘06 comes when we look at unanimous or nearly unanimous decisions. Last term, over half of the opinions the Court issued garnered only a single dissent or no dissent at all (28 9-0 and nine 8-1 making up 51% of the cases disposed). In a year hailed for its return to a less divisive Court, we might expect to see a rise in these types of decisions, but surprisingly this number dropped significantly to merely 38% (only 21 9-0 and six 8-1 opinions). The remaining opinions were the 7-2 splits, which underwent a dramatic transformation as well, doubling both the 2006 term and the ten term average; the 20 such decisions (making up 28% of the total) were the highest in recent history. In 15 of those cases, the two dissenters came either both from the liberal or conservative wings of the Court.

The term-to-term disparities outlined above present a difficulty in analyzing OT07: unlike 2006, with its prevailing 5-4 splits — and the dominance of ideological alignments within those splits — 2007 does not provide a simple ideological explanation for its frequent dissent. 7-2 rulings, by their very nature, dilute the cohesion of either ideological bloc and even a closer examination of 6-3 and 5-4 opinions shows a slip in traditional ideological alignments. Of 26 signed opinions with three or more dissents in 2006 (removing one 6-3 per curiam opinion), 19, or 73%, split along traditional left-right lines (that is, with three or four members of one ideological bloc dissenting together). In 2007, that number was 14 of 22, or 64% (removing the two 4-4 per curiam splits in Tom F. and Warner-Lambert).

An interesting side note: six of the 14 ideological splits from 2007 were 6-3 opinions in which the majority was made up of the four members of one ideological bloc, Justice Kennedy, and one member of the other bloc (e.g. the majority in Gomez-Perez was Justices Stevens, Kennedy, Souter, Ginsburg, Breyer and Alito). Without commenting on the likelihood of such an occurrence, only a handful of votes changed this term from submitting a very similar number of ideologically split 5-4 decisions as 2006.

The simplest explanation for all of this seems to be that while Justices continued to disagree with one another frequently in 2007, those disagreements lost some of the ideological character of the previous term. Chief Justice Roberts has made his viewpoint on unanimity clear, calling for narrower rulings that could attract more robust majorities from across the liberal-conservative spectrum. In a sense, the decline in 5-4s and in contentious ideological splits shows that this Term is more in-line with how the Chief envisions the Court doing its best work, even if the unanimous majorities continue to prove elusive.

One caveat to all this: in two of the most closely-watched of all the cases this term, Heller and Boumediene, Court watchers likely felt a sense of OT 2006 déjà vu. Once again they saw 5-4 splits decided along ideological lines; in Heller, they once again saw a dissent read from the bench; once again some quite pointed language crept into both the majority and dissenting opinions. Is it possible that these cases, with their links to the atmosphere of the 2006 term, provide a better guide for the Court in OT 2008?