Supreme Court MemoAt Supreme Court, 5-to-4 Rulings Fade, but Why?

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Supreme Court Memo
At Supreme Court, 5-to-4 Rulings Fade, but Why?


By LINDA GREENHOUSE

WASHINGTON — Where have all the 5-to-4 decisions gone?

And whatever happened to the “Kennedy Court”?

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases — the highest proportion in years — had been decided by margins of a single vote.

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld Kentucky’s method of execution by lethal injection by a vote of 7 to 2. It upheld Indiana’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

All were major cases, all plausible candidates for 5-to-4 outcomes. All were government victories, hardly surprising coming from a conservative court. But even Justice John Paul Stevens, the leader of the court’s beleaguered liberal bloc, voted with the majority in all three cases. The surprise was that the government side won each so handily.

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

With the conservative bloc so clearly in control, what leverage could the liberals possibly have? Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice. That was not how the last term looked, as the majority took aim at precedents and appeared to have in mind an agenda much more ambitious than simply calling balls and strikes.

Indeed, much of the commentary on the court’s performance during the last term was harsh, and it came not only from liberals. Judge Richard A. Posner, the conservative icon who sits on the federal appeals court in Chicago, offers some pointed and unusually personal criticism of Chief Justice Roberts in his new book, “How Judges Think,” published this year by Harvard University Press. The chief justice’s self-description during his confirmation hearing as a simple baseball umpire might have been a “tactical error” for one who evidently “aspires to remake significant areas of constitutional law,” Judge Posner writes, adding:

“The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

Such words from Richard Posner would cause any member of the court, let alone a relatively new and young chief justice who undoubtedly admires him, to swallow hard.

The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term.

“Of course, lots of things could explain this, but the pattern is pretty interesting,” Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”

Perhaps the conservative justices were taken aback by the public response to the Lilly Ledbetter case, a 5-to-4 decision in an employment discrimination case last term that placed a tight time limit on an employee’s ability to file a pay discrimination claim. The decision led to Congressional hearings during which the court was denounced as out of touch with the reality of women’s working lives. A bill to overturn the decision failed in the Senate, but came close.

Whether as a direct result, the court adopted a notably different tone in an employment discrimination case decided in February. The court voted 7 to 2 to excuse an employee’s failure to file the proper form to initiate an age discrimination case. With only Justices Scalia and Clarence Thomas dissenting, that case, Federal Express Corp. v. Holowecki, produced one of the term’s few liberal victories. Another closely watched employment discrimination case ended, surprisingly, with a unanimous decision that avoided drawing the clear line that the two sides were arguing over.

None of this is to suggest that whatever strategic decisions the justices are making are being made collectively. The court is by its nature an atomistic institution, its actions the aggregation of determinedly individual decisions. But if any one individual is smiling, it is no doubt Chief Justice Roberts. By this time last year, he had cast seven dissenting votes. So far this term, he has dissented only once.

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