May 23, 2008

"And whatever happened to the 'Kennedy Court'?"

Asks Linda Greenhouse, in a survey of the Roberts years on the Supreme Court that notes the decline of 5-4 decisions. There's only been 1 this year (and it was a "low-profile" statutory case where Justice Kennedy, in dissent, was not the deciding vote). Last year a third of the cases were decided 5-4. What's going on? It may be that the more contentious cases will come in the last days of the term. Greenhouse notes that Justice Stevens has voted with the conservative Justices in a few key cases:
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.
Or is it the Chief Justice playing a moderating role and following through on the ideas about minimalist decisions that he expressed at his confirmation hearings?
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....

The court’s modulated tone may also stem from the fact that this is an election year....
It's interesting that this line is well-separated from the discussion of Justice Stevens behavior. Is he perhaps hoping for a President who will appoint a liberal Justice or 2? It would not help that agenda to display the spectacle of 4 liberal Justices eager to change everything if only they could get one more vote.

Who's to say what these big patterns mean as cases are decided individually, by judges forming opinions mostly on their own? But Greenhouse's observations sharpen our view as we look to see the torrent of cases in the upcoming days. (And how strange it will be when we won't have Greenhouse to sharpen the picture for us anymore!)

ADDED: Jonathan Adler objects to the Greenhouse analysis.

11 comments:

OldGrouchy said...

"Sharpen" our view of SCOTUS? How, when Greenhouse's view is through that of a raging Socialist; red colored eyeballs!

Perhaps the next reporter, or reporterette, on the SCOTUS beat will have eyes that work and see the world as it is not as it's wished to be!

Simon said...

As ever, it all depends on the cases. Even if one assumes that where there is a clear "conservative" result and a clear "liberal" result, the court will break 4-4 with Kennedy deciding the case, that analysis only holds in cases where there is such a result. What is the "conservative" result in, say, Santos, which we're still awaiting? What was the "liberal" answer in Medellin (you can almost hear the heads exploding: "we've got to either give the ICJ the finger or embrace the Bush administration?!"). Was Baze a conservative result? Perhaps so, but in the mold of Harlan rather than that of Scalia or Thomas.

Several cases this term, those issued so far, haven't been so clear cut. Others are, and I suspect that we'll see some more 5-4 cases later this term. But in any event, the central point I'd make is that to a great extent, you could get this result without any changes, conscious or otherwise, by the justices: sheer luck of the draw, which certworthy cases are petitioned when and fall into which calender, can adequately explain the result.

Telle said...

What exactly is a liberal when it comes to judging cases based on the law? Is it a judge that believes that laws can and should be created out of whole cloth from from the bench?

How is that liberal in any sense of the word?

Or does Greenhouse think that if the result is what liberals want, then the judges that voted for the decision voted liberal - damn the law.

Simon said...

Or, you know, it could be that Stevens is playing a similar hand to that I think Rehnquist played in cases like Hibbs and Dickerson. Stevens can't assign the majority opinion, so his hand is weaker than Rehnquist's, but in particular cases, he could be saying, look, I know you want to avoid 5-4 votes, Chief, so if I write this - or if someone else writes it and writes it narrowly - I'll go along with it." That would explain the very careful parsing in Baze, for example.

rhhardin said...

Modulated tone brings me to a halt. That has to be a buzzing or something, which is then examined for the information it bears.

You'd think ``modulate'' would come from the past participle of ferro ``carry'' but it does not.

MadisonMan said...

You mean punditry prediction proved false? Say it isn't so!

rhhardin said...

Fero not ferro

Simon said...

Telle said...
"What exactly is a liberal when it comes to judging cases based on the law?"

I suppose that you could charitably define the liberal approach to judging as resting on two and a half key tenets. First, as Ann has noted before, legal liberals are more concerned with the direct grants of liberty in the Constitution, to the almost total exclusion of concern for judicial enforcement of the structural constitution (but see generally Redish, The Constitution As Political Structure (1995)), whereas legal conservatives tend to be more concerned with the structural constitution and take a narrower view of courts' power to fetter the decisions of the elected branches with constructions of the rights-bearing amendments. Second, when the text is not clear, you look to the purposes of legislation, and seek to effectuate those purposes, even in derogation of the text, at least to the extent those purposes serve or are consistent with the growth, maturation and liberalization of society. And second-and-a-half, when the text is clear, insist that it is not, and proceed as above (see, e.g., United States v. Gonzales, 520 U.S. 1 (1997) (dissent quibbles over the meaning of the word "any")).

OldGrouchy said...

The comments here are but another example of how our current language is biased by our political views! IMHO, most Americans, and many Brits, are really of a liberal view, at least in the older classical definition of liberal. In some ways we probably are divided more by a difference between Socialism and free marketism(Sick, sic).

The differing views of how our Constitution should be evaluated by judges is but one example.

Ms Greenhouse seems to "feel" that SCOTUS makes decisions based on "left" vs. "right" attitudes. I do doubt that and do hope she's wrong. Maybe FDR's prospective on SCOTUS will become the prevalent view and that would not be good for our future.

vbspurs said...

Greenhouse's thought process is all over this article, and I hate when writers inject their intuitions, or read judicial tea leaves.

It's a Memo, not an Op-Ed, Linda.

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.

Or maybe there's an energetic, organised young Chief who, surely, has to be ranked in the Top 3 of President Bush's best decisions in Office.

Cheers,
Victoria

Simon said...

Something else that sticks out of Greenhouse's article like a sore thumb: since when has Judge Posner been, for better or worse, a "conservative icon"? I wouldn't even call him (or his jurisprudential views) conservative, iconic or otherwise.