The Supreme Court’s Term So Far: An Unusual Degree of Agreement, With Liberals Joining “Conservative” Rulings and Vice-Versa

By EDWARD LAZARUS
Friday, Jun. 6, 2008

Although the Supreme Court has yet to decide some of the most important pending cases before it, it is not too soon to say that this has been a surprising term. Based on last term’s record, most prognosticators (including me, I must confess) thought that this term would see another spate of hard-fought 5-4 decisions in which the Court split along its well-established ideological divide, with Justice Anthony Kennedy playing the role of swing justice, delivering victory to one side or the other. Instead, the Court has achieved a significantly higher degree of consensus in many cases that were good candidates for 5-4 battles – with some liberal justices joining “conservative” decisions and some conservative justices joining in “liberal” ones.

In this column, I’ll examine some of the cases that might have been 5-4, but were not, and also consider explanations for why the Court has been able to achieve more consensus than many expected.

A Spate of Recent Cases Illustrates the Court’s Ability to Avoid 5-4 Splits

The last couple of weeks have seen at least four new examples of this phenomenon. In two separate decisions, one 7-2 and the other 6-3, the Supreme Court decided that both Section 1981 and the Age Discrimination in Employment Act (ADEA) prohibit retaliation against employees who complain of discrimination, even though neither statute specifically states that it prohibits such retaliation. (The ADEA decision was Gomez-Perez v. Potter; the Section 1981 decision was CBOCS v. Humphries). Despite these liberal results, Justice Samuel Alito joined both of these decisions and even authored the decision interpreting the ADEA. Chief Justice John Roberts also joined the decision interpreting Section 1981.

Even more recently, a mixed-bag coalition of liberals and conservatives joined together to reverse two criminal convictions by giving the federal money laundering statute a relatively narrow construction, in United States v. Santosand Cuellar v. United States. Although the Court divided 5-4 in one of these two cases, the other decision was unanimous and, no less important, the Justices, in these cases, did not break down along ideological lines, nor did they depend on Justice Kennedy as the tie-breaker.

On the flip side of the ideological coin, earlier in the term the Court issued several “conservative rulings” in which liberal justices joined. For example, the Court upheld the controversial three-drug cocktail for carrying out the death penalty by a 7-2 vote in Baze v. Rees and, by a 6-3 tally, upheld Indiana’s stringent voter ID law, requiring voters to present a government photo ID on election day before casting a ballot, in Crawford v. Marion County Election Bd. A seven-justice majority also voted to uphold the latest Congressional attempt to restrict child pornography (after having repeatedly struck down previous attempts), in United States v. Williams. Meanwhile, some decidedly pro-business decisions have been decided by even more lopsided margins.

Is the Court’s New Ability to More Frequently Avoid 5-4 Splits and Ideological Divides Simply the Result of Its Current Set of Cases?

As Linda Greenhouse commented in a recent New York Times article astutely reporting the stark contrasts with last term, “[S]omething is happening, clearly.” Very true. But it is very hard to know exactly what is happening and what to make of it.

I begin with a strong caveat: It is highly artificial and not especially illuminating to look at the work of the Court on a term-by-term basis. The Justices don’t magically transform themselves over the summer recess between terms. In general, change within the Court comes, if at all, either through retirement or gradually over the course of years.

How any particular term shapes up is powerfully influenced by the kinds of cases that happen to come up for review during that particular term. Some terms, like the last one, are crammed full of ideologically-charged cases – abortion and racial preferences, for example – which highlight the ideological divisions on the Court. Other terms, like the current one, are filled with cases that either carry less ideological freight or, for idiosyncratic reasons, create coalitions encompassing some pretty strange bedfellows.

Justices’ Interpretive Preferences May Combine with the Mix of a Term’s Cases to Produce Votes that Do Not Seem To Track Justices’ Typical Ideology

Sometimes, for example, the emphasis that Scalia and Thomas put on the “plain language” of statutes drives them to “liberal” results. For example, in United States v. Santon this approach led to their votes for overturning a criminal conviction on the ground that the word “proceeds” in the federal money laundering statute should be read as limited to the “profits” of a corrupt business and not to its gross receipts (as the prosecution had alleged).

By the same token, Justice Stephen Breyer’s predilection to defer to the judgments of federal administrative agencies often leads him to “conservative” pro-business outcomes. For instance, Breyer was in the majority in the recent pre-emption cases in which the Court has prohibited lawsuits based on state consumer protection laws in certain situations where a federal agency has already placed its imprimatur on the safety of the product at issue.

One way to sum up this phenomenon is to say that justices coming at problems from very different perspectives can sometimes reach the same bottom line in a case despite their ideological differences. And that, if a given term happens to have an unusually high number of these cases, the basic dynamics of the Court, which is still divided into two very distinct ideological wings, can be obscured.

A Shared Interest in Consensus on the Part of Both Conservative and Liberal Justices May Also Be at Work

At the same time, however, it seems fair to say that at least one other phenomenon is at work within the current Court that is driving a surprising degree of consensus. For the moment, at least, some members of the conservative wing (Roberts especially) and some members of the liberal wing (Stevens especially) seem to have a shared interest in handing down compromise decisions that can garner more than the usual narrow five-Justice majorities.

For Chief Justice Roberts (and Alito too, one suspects), the issue is one of being true to his word. To great fanfare, Roberts claimed a profound commitment to bringing greater consensus to the Court as well as to giving a high degree of respect to precedent. Last term, this goal eluded him and, frankly, given Roberts’ own role in some of the divisive cases, some suspected that he lacked the courage of his professed convictions. This term, however, his commitment to a more collegial, unified Court has re-emerged.

But achieving greater consensus necessarily entails compromising with the Court’s liberal wing in order to limit the scope of conservative decision. Reflecting this stubborn fact, a lot of the “consensus” decisions the Roberts Court has produced, especially in controversial areas of law, have been extremely narrow -- indeed, almost case-specific. So it is, to cite but one example, that the Court okayed the three-drug lethal injection cocktail in Baze v. Rees, but left the door open to new challenges based on the possibility that more evidence of problems with the protocol for the cocktail’s administration, and/or how it is followed in particular states, could be submitted.

Respecting precedent also sometimes has the effect of driving Roberts and Alito into the arms of the liberals, as happened in the cases raising the issue of whether Section 1981 and the ADEA outlaw retaliation. In all likelihood, neither justice would have reached these results in the absence of past decisions pointing the way.

At least some of the liberals, for their part, seem willing in at least some contexts to give Roberts the greater consensus he seeks, in exchange for narrowing the scope of conservative victories. Pragmatically speaking, if the liberals are going to lose (which, on this Court, they often are), why not lose on the narrowest possible ground, even if the price is going along for the ride? The alternative may very well be to lose much more broadly, 5-4.

In this sense, at least some of the surprises of the term have sprung from a marriage of convenience. Yet as with many such marriages, one has to wonder -- especially with an election coming up that could result in dramatic change on the Court -- how long it is destined to last.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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