This news story first appeared on July 1, 2014. For more information click here.
Tower Center Associate, Pamela Corley is an associate professor in the Political Science Department at SMU.
Compromise at the Supreme Court Veils Its Rifts
By Adam Liptak, New York Times; July 1, 2014
WASHINGTON — Two very different group portraits of the Supreme Court emerged this term, one familiar and one unexpected.
The familiar was on display Monday in two 5-to-4 decisions that were split by angry divisions and seemed to advance a conservative agenda.
But the more finely drawn portrait takes account of the 67 decisions in argued cases this term. The court was unanimous about two-thirds of the time, and those cases revealed signs of compromise and restraint, which many Supreme Court specialists said was a testament to the leadership of Chief Justice John G. Roberts Jr., 59.
“The chief has done a remarkable job this term navigating divisions and dodging the most controversial of issues,” said Lisa S. Blatt, a lawyer with Arnold & Porter who argues frequently before the court.
Chief Justice Roberts, who completed his ninth term, does not get his way by backslapping or horse-trading, but by writing savvy opinions, making strategic opinion assignments to the other justices and sometimes working to protect the Supreme Court from accusations that it is a political institution.
His majority opinion striking down buffer zones around Massachusetts abortion clinics was much narrower than his earlier First Amendment jurisprudence would have suggested, narrow enough to attract the votes of all four liberal justices. And he wrote a muscular opinion for a unanimous court requiring the police to get warrants before they search the cellphones of people they arrest.
All of the justices are sensitive to the accusation that they are motivated by politics.
The current set of nine justices is, for the first time in history, firmly divided along partisan lines, with all of the Republican appointees more conservative than all of the Democratic ones. Their efforts to find common ground may have been partly an attempt to counter the charge that they are, in Justice Stephen G. Breyer’s words, “nine junior varsity politicians” motivated by partisan agendas better left to elected officials.
But the number of unanimous decisions — a record for the Roberts court and the highest percentage since at least 1953 — masked some powerful disagreements, as the justices often agreed only on the bottom line, as was true in the abortion protest and recess appointment cases.
What matters most in Supreme Court decisions is what legal principle commanded a majority, not which side won. Lower courts will apply those principles, and the divisions about the reasoning supporting decisions can be vital. They mattered so much to Justice Antonin Scalia that he all but created a new judicial genre — he wrote three furious concurrences.
The Roberts court’s conservative majority has not retreated from several of its core concerns. It remains skeptical of campaign finance regulations, efforts to drive religion from public life and race-conscious decision-making by the government. It remains solicitous of corporate rights and of efforts to curb union power.
When the chief justice was in the majority in such cases, most decided by narrow margins, another side of him emerged. In all of them, he wrote or joined opinions that claimed to be modest extensions of existing law but may well portend wrenching change.
But the 5-to-4 splits dropped, to just 10. Of those, six featured the classic alignments, with Justice Anthony M. Kennedy joining either the court’s four more liberal members or its four more conservative ones. He leaned right two-thirds of the time.
But in a great many cases the justices found ways to agree. This was the fourth term together for the nine current justices. Its newest members, Justices Sonia Sotomayor and Elena Kagan, have grown increasingly comfortable in their roles, and all of the justices seemed, mostly, eager to find common ground with their colleagues.
It did not hurt that the term lacked huge and profoundly divisive cases like those that ended the last two terms. In June 2012, months before the presidential election, the court narrowly upheld the Affordable Care Act. In June 2013, the court issued one major ruling on same-sex marriage but kicked an even bigger question down the road.
The story of the current term was somewhat anticipated in a book published last year by three political scientists: Pamela C. Corley, Amy Steigerwalt and Artemus Ward. It was called “The Puzzle of Unanimity: Consensus on the United States Supreme Court.”
It is, after all, not obvious that the justices should ever all agree. The issues that reach them are complicated and usually susceptible to multiple plausible answers. Lower courts have almost always given varying answers. The justices themselves have differing judicial philosophies.
But the justices know that unanimous decisions have more force, which is why they worked hard to issue them in Brown v. Board of Education, the 1954 school desegregation case, and United States v. Nixon, the 1974 decision that hastened the end of the Nixon administration.
Lower courts are less likely to follow divided decisions. But, and here is the bad news for the current court, there are two ways to be divided. “While dissents are clearly detrimental to the authority of majority opinions, concurrences can be equally damaging,” the “Puzzle of Unanimity” authors wrote. “In fact, if a decision of the court is accompanied by a concurrence that does not support the majority opinion, lower courts are less likely to comply with it.”
While the court’s level of agreement this term was authentically high, the numbers overstate the case. “A lot of the unanimity is ersatz,” said David A. Strauss, a law professor at the University of Chicago.
It is not every day, for instance, that you see a Supreme Court justice reading an angry concurrence from the bench, as Justice Scalia did last week in the recess appointments case. (Even oral dissents are rare, issued perhaps four times a term.)
Justice Scalia was similarly dismissive of the majority opinion in the unanimous case on abortion clinic buffer zones, issued the same day, though he concurred in the result. “I prefer not to take part in the assembling of an apparent but specious unanimity,” he wrote.
The majority opinion was written by Chief Justice Roberts and joined by the court’s four liberals, an exceedingly unusual alignment. It was the same alignment that saved the Affordable Care Act in 2012.
Justice Scalia was no happier about two other narrow Roberts opinions for the same coalition plus Justice Kennedy, one avoiding a major decision on the scope of congressional power in a treaty case, the other rejecting a request to do away with securities fraud class actions.
Both times, Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. would have gone much bigger, and they refused to adopt the majority’s reasoning in either case. But nonetheless the vote counts said the decisions were unanimous.
“The higher unanimity rate might reflect an increase in cases with low ideological stakes,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “This term, about 36 percent involved questions of rights and liberties, compared with 57 percent in the three previous terms.”
Justice Kennedy was most often in the majority, though not by much. He was rivaled by Chief Justice Roberts.
But Justice Kennedy was the only justice in the majority in all of the 5-to-4 decisions. The six that featured the classic ideological splits were telling.
Justice Kennedy joined the court’s conservative wing in major cases allowing more money in politics, more religion in official settings, religious liberty rights for corporations and limits on union power. He joined the court’s liberals in limiting the use of the death penalty and sustaining the use of a federal gun control law to curb so-called straw purchases.
Business groups had a good if relatively quiet year at the court. The U.S. Chamber of Commerce filed briefs in 17 cases decided by signed opinions and was on the winning side 13 times. “As in past terms, the court continued to curb the worst excesses of the plaintiffs’ bar and overreach by regulators,” said Lily Fu Claffee, general counsel to the group. “We consider that a great year.”
The administration suffered stinging losses in several major cases, including ones on campaign finance, recess appointments and the contraception coverage put in place under the Affordable Care Act. The court “rejected Obama’s position in nearly all the high-profile cases of the term,” said Adam Winkler, a law professor at the University of California, Los Angeles.
But the administration still won 56 percent of the cases in which it was a party, compared with 39 percent last term, Professor Winkler said. It did even better in cases in which it had filed supporting briefs, ending up on the winning side 70 percent of the time.
Some of this may reflect decisions to take fairly conservative positions, notably in the case on opening town board meetings with a prayer. But the administration did well in major environmental cases in which it was not obvious that it would prevail.
The current term may have been a chance for the court to catch its breath, said Ms. Blatt, the lawyer with Arnold & Porter. “They are either resting up and saving their fire for all of the abortion, guns and gay marriage cases in the lower courts,” she said, “or the cases this term were simply not as controversial as in the past two years.”
Samuel Issacharoff, a law professor at New York University, cautioned that it was too soon to declare a new era of harmony and light based on, say, the unanimous votes on recess appointments and abortion clinic buffer zones.
“No one should confuse these outcomes with a sudden outbreak of Kumbaya fever at the court,” he said. “The familiar lines of division were in evidence in all these cases. But, surprisingly, the court found a way to channel its core divisions into compromise holdings that allowed controversial cases to be settled rather than resolved.”