Would it surprise you to know that about half of the Supreme Court’s decisions this year were UNANIMOUS?
Would it surprise you to know that when decisions aren’t unanimous, they frequently divide the justices into groups that don’t fit partisan stereotypes?
To become a justice on the Supreme Court, you generally can’t just be a partisan hack. Take some time and read some Supreme Court decisions. Listen to some oral arguments. The people who sit on this Court are very intelligent. Very intelligent people tend to have their own opinions, particularly on such nuanced issues as the Law.
Nevertheless, in the lead-up to the decisions on health care and immigration which should be coming out in the next week or so, there has been a frankly inexcusable tendency for the media to act as though these nine people are like typical partisan idiots who walk into a voting booth and simply check the box next to “Republican” or “Democrat” based on their affiliation. According to this gross distortion of the Court, Kennedy is some sort of wildcard, swaying back and forth as the breeze takes him to “conservative” and “liberal” quarters.
This is, frankly, insulting to the Court. It is insulting to the justices. And it speaks volumes about the ignorance of the media in propagating such a myth.
It takes a certain level of ignorance to post a story about Supreme Court statistics on a day when the Court’s behavior actually shows those statistics to be meaningless. Yet John Hudson over at The Atlantic apparently aspires to a higher standard of ignorance.
Decrying polarization is the everyone’s favorite game in Washington, but in the case of the Supreme Court, it’s statistically measurable. On Monday, the high court handed down three 5-4 split decisions in its four most recent cases. Considering the outcome, and the fact that a likely five-four split will be on its way for the health care reform ruling, The New York Times Juliet Labidos was curious if the court is more divided than it has been in history. Turns out: There’s a strong case that it is.
That would be one way of reading Juliet Labidos’s blog post over at The New York Times. Unfortunately, it’s a rather ignorant one, and one that is incredibly deceptive. There’s not a “strong case” for polarization, and even if we could argue that there is a weak case for one, Monday’s 5-4 decisions are certainly not a good example of it. (Labidos does give a little more nuance to the arguments with a few more caveats, but the general discussion is still misleading.)
As the graph cited by Hudson notes, there have been a higher percentage of 5-4 decisions in the Roberts Court than under previous Chief Justices. But there are a number of reasons that such an observation tells us nothing about political polarization on the Court.
To begin with, we need to take into account whether the Court actually splits 5-4 along supposed ideological lines — with Ginsberg, Sotomayor, Kagan, and Breyer in the “liberal” camp, Scalia, Thomas, Alito, and Roberts in “conservative” camp, and Kennedy drifting back and forth as the mood takes him. Hudson is smart enough to mention this:
Now, it’s worth noting that the Roberts court isn’t always divided by partisan lines. As Lapidos notes, ”Chief Justice Roberts wrote today’s dissenting opinion in Salazar v. Ramah Navajo Chapter. He was joined by Justices Ginsburg, Breyer, and Alito.” That’s quite an ideologically diverse group. Still, we know by the legal opinions of the court, that this sort of split isn’t the norm.
While “this sort of split” may not happen all the time, these sorts of non-partisan divisions actually do occur rather frequently. In fact, it might be good to mention that such supposedly abnormal divisions happened in not one but two of the three decisions on Monday. Hint to the media: if you want to prove that the Court is ideologically divided along 5-4 lines, try not to publish about it when 2/3 of the decisions are 5-4 NOT along supposed ideological lines. And, by the way, in the fourth decision issued on Monday, the ruling was 8-1, with Sotomayor dissenting. Clearly that isn’t along partisan lines, so 75% of the decisions which came out on Monday do NOT support the thesis of the New York Times and The Atlantic.
Let’s recap those decision splits. In Christopher v. SmithKline Beecham Corp., the Court actually split 5-4 along the supposed “partisan” lines. But in Salazar v. Ramah Navajo Chapter, we saw a 5-4 split with Sotomayor writing the opinion for the majority, joined by Scalia, Thomas, Kagan, and Kennedy. The decision had to do with money Congress had allocated to pay for police services and other governmental duties for Native Americans, but which Congress later capped below the levels it had originally agreed on. Essentially, it left the Native Americans footing the bill for something when they were told that someone else was paying. You might think that conservatives (with their “small government, less tax” leanings) might all gang up and say the federal government is better not spending more, and spending caps are good, even if they cause a few problems administratively. Yet the arch-conservatives Thomas and Scalia (along with Kennedy) came to the opposite conclusion. Meanwhile, if you were the simplistic ideological sort, you might think that liberals (with their “bleeding heart” sympathy for Native Americans and lack of care for federal spending) might rush to give the money to tribes. But, alas, Ginsberg and Breyer seem to buck that trend too. What the heck is going on?
It seems to get even more puzzling when we look at the other 5-4 ruling of the day, Williams v. Illinois. If you saw, for example, the Boston Globe’s coverage of the story, you might think that the evil conservatives headed by Clarence Thomas (with his dour face) were spearheading a fight to take away defendants’ rights:
Justice Clarence Thomas provided the margin of difference in the case to uphold conviction in the rape case.
Amidst all the talk of “factions” on the Court, a mildly intelligent reader of this story might start to wonder: “What?! I thought Kennedy was that yellow-bellied scoundrel who flits back-and-forth! How could Clarence Thomas be the deciding vote?”
Well, first off, Thomas was hardly “writing only for himself, but controlling the outcome of the case.” All nine justices controlled the outcome of the case. The fact that they happened to split into two groups rather than three or four or nine is irrelevant information. One could just as well say that one of the justices in the other groups of four “controll[ed] the outcome of the case,” since any of them could change the outcome by switching their vote.
Note the desperate attempt to portray the idea of warring factions, 4 on one side, and 4 on the other. Except… wait a minute — what’s crazy liberal Stephen Breyer doing over there with Roberts and Alito and Kennedy? And why is arch-conservative Scalia siding with arch-liberal Ginsberg, along with Kagan and Sotomayor? These aren’t the four-against-four battle lines we’re supposed to have, with Clarence Thomas, arguably the most conservative justice of them all, flitting back-and-forth to decide things in the middle. Scalia lines up for defendants, while Breyer wants to cast them into jail? What is going on here?
The answer is rather simple. The justices’ vote based on legal reasoning, not based on simplistic partisan nonsense. They sometimes do line up roughly with conservative and liberal stereotypes, just because they were chosen because their nuanced legal perspectives often happened to serve the President who appointed them. But these are law scholars — they will vote based on their opinion of the law, which may (and often does, if you pay attention to opinions) conflict with partisan ideology or personal opinion. In the end, they have complex perspectives on the law which are much, much more intelligent and rational than any party platform, which is generally made up to pander to the most people.
Here’s the reality — even in these supposedly political polarized 5-4 decisions, about 1/3 of the time, the split does not have the “four liberals” lined up against the “four conservatives.” That’s pretty significant: about 1 out of 3 cases decided 5/4 is not actually “polarized” by these supposed boundaries. Hudson is right that 5-4 decisions split differently aren’t the most common occurrence, but they’re fairly common.
Well, actually, they would be if in fact polarized decisions were that common anyway, which they’re not. As the official SCOTUSblog statistics show, the Court has ruled unanimously in about half of the cases this term. (For more details and charts, scroll down to the “StatsPack,” which contains analysis of this term and the previous 10 years of Court history, up through the end of May this term — it does not include the most recent rulings.) Daniel Fisher noted this over at Forbes earlier this month.
In fact, for all of this talk about partisan divisions, the Roberts Court has one of the highest unanimous decision rates in history (if not the highest), with roughly 40% of its decisions being 9-0. Another 10% or so tend to be 8-1, where we can’t really see “ideological divisions,” since it’s just one loan person in dissent, not clearly representing a “faction.”
What about the other possible divisions: 7-2 or 6-3? Do they always fall along partisan lines? The answer, as can quickly be seen from the SCOTUSblog stats is a clear NO. In this term alone, “conservative” Alito and “liberal” Breyer teamed up in dissent in Golan v. Holder, while the supposedly more polarized justices further to the “left” and “right” all agreed in the 6-2 decision (Kagan recused herself). It gets even weirder. In this year’s Reynolds v. United States concerning sex-offender registries (not to be confused with Reynolds v. United States decided in 1878, which effectively outlawed bigamy when dealing with the common Mormon practice), which decided 7-2, the dissent was written by Scalia, joined only by arch-liberal Ginsberg.
So, 2 of the 5 decisions this term which came out with only 2 justices in dissent showed combinations of justices that did not split along ideological lines. What would we expect, if justices’ opinions were randomly distributed? There are 36 possible combinations of two justices, and 20 of them would classify as “ideological” divisions (according to the traditional 4 against 4 rhetoric, with Kennedy qualifying for both sides). Thus, we’d expect apparent ideological decisions in roughly 56% of cases, even if justices chose sides by chance. What did we actually see? 60% this term, with 40% “non-ideological.” That’s not even a significant showing for decisions with 2 justices in dissent.
As for the 6-3 decisions, they might seem slightly more partisan, except it’s rarely predictable which justice will bolt from the dissent to the majority. From the liberal side, for example, it’s rarely Ginsberg (who tends to be the most ideological justice, according to stats, beating even Thomas and Scalia). But it could be Kagan or Sotomayor or Breyer or… sometimes both Kagan and Sotomayor will join the conservatives, with Kennedy coming into the dissent. This hardly sounds like a well-defined set of clear “liberals” against clear “conservatives.”
Yes, it is true that some of the 7-2, and 6-3 divisions, along with the 5-4 decisions, do tend to group ideologically. But this is not always the case.
Let’s be perfectly clear about all of this: The Roberts Court has ruled unanimously or 8-1 (where there is no meaningful ideological division) at least 50% of the time. In the 7-2 decisions, at least in the past year, it’s hard to see any partisan alignment above chance. That leaves us with only about 35% of decisions that could even be considered partisan in any way. And in those remaining decisions, roughly 1/3 of the time, the divisions do not fall on meaningful “partisan” lines.
All of this stupidity in the media about a partisan Court follows weeks of commentary about how Americans are supposedly losing faith in the Court, with only 44% of Americans “approving” it.
Let’s contrast that with an actual partisan body, namely the U.S. Congress, whose approval rating has been in the 10-20% range for the past YEAR (and, frankly, I’m not sure approval of Congress has ever been up as high as 44%, except perhaps in the “patriotic” days after 9/11).
If there is are any lessons from these statistics, perhaps we should correlate disapproval with real partisanship. In that case, the Supreme Court, which has tended to float between 45% and 60% approval over the years, is actually a model to imitate, while Congress, which struggles to get above 25% approval even in good years, is uniformly dysfunctional.
Perhaps the American public is actually smarter than the yahoos over at The Atlantic and The New York Times. Maybe they actually can tell the difference between simplistic partisan divisions and actual intellectual debate.
The Supreme Court may be trending toward stronger divisions due to the politicized appointment process in the past few decades. But, so far, the actual statistics show that the Court is frequently unanimous, and when it does split, it is quite frequently in ways that are not “predictable” according to party politics.
That’s exactly what you’d expect from nine people who actually have the ability to think for themselves.