"Why I'm Not Looking Forward to the New Supreme Court Term"

The New Republic Online
Why I'm Not Looking Forward to the New Supreme Court Term
Court Time
by Benjamin Wittes
Only at TNR Online
Post date: 10.01.07

It's the first Monday in October, the day the Supreme Court begins its term, and I'm supposed to be salivating. For legal writers, after all, this is opening day of a new season. And the justices have some big cases on their schedule: the fate of Guantanamo detainees, the constitutionality of lethal injection, and voter-identification laws. They're sure to add more in the coming days.

And yet my salivary glands are on strike.

In fact, thinking back on the last term, I can't help a certain feeling of dread about this coming one. It's not the decisions with which I expect to disagree--though there are certainly some of those. It's the sense, rather, that the court has embraced the most childish and cartoonish kind of ideological divisions. It's the sheer volume of 5-4 decisions we saw last term and should fear again this one, combined with the needless paucity of unanimous opinions.

Most of all, it's the fact that not a single justice seems to be standing against the trend.

Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court's institutional capital. For example, in a speech at Georgetown last year, he emphasized that while "division should not be artificially suppressed ... the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds." And a year ago, I was all ears. The first term of the Roberts Court had raised hopes that, perhaps, with new leadership, the court could break through its sterile ideological line-ups more frequently and speak more often as a court, rather than as a collection of individual justices. Last term dealt that dream a severe blow. Some issues--most notably global warming and the execution of the mentally ill--produced wins for liberals. Other issues--abortion, affirmative action, and campaign finance--yielded victories for conservatives. But it's hard to identify important areas in which the court spoke with a strong voice that rose above the polarized views of its members. The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted. And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today.

The numbers are stark. In Roberts' first term, according to the Harvard Law Review, the justices disposed of 36 of their 81 cases unanimously and divided 5-to-4 in only nine of them. That 44 percent rate of unanimity--defined as a single opinion with no concurrences or dissents--was the highest in the nearly four decades that the law review has published this particular statistic. What's more, not since the 1987 term had the court split 5-to-4 in a smaller percentage of cases. These data somewhat overstate the love that broke out that year. Because Justice Samuel Alito did not arrive until midway through the term, the justices split 5-to-3 in a few cases that probably would have garnered 5-to-4 splits had the court been fully staffed. And it is marginally easier to reach unanimity with only eight justices than it is with nine. Still, with a new chief and a pending nomination, the court that year put on a display of unity unprecedented in its recent history.

Last term, with the heat of the nomination process turned off, was an entirely different story. The justices managed unanimity (according to the Harvard Law Review's definition) in only 13 of their 73 decisions, a mere eighteen percent. In 23 cases -- or 32 percent of the caseload -- they split 5-to-4. You have to go back to 1980 to find a year in which the court decided a lesser percentage of its cases unanimously, and and not since the Harvard Law Review began tracking 5-4 decisions in 1981 has the rate of such splits exceeded last term's. The court, in other words, lurched from a moment of unusual unity to a particularly dramatic polarization.

The polarization was far worse than it needed to be, both numerically and qualitatively--and there's blame enough to go around for that. The conservatives treated recent precedents of the court with either open hostility or something approaching a smirk; the liberals sometimes neared hysteria over incremental changes in the law. Not one of the nine justices was willing to apply to the federal partial-birth abortion statute the logic the court had unanimously articulated the year before for a New Hampshire parental notification statute--in which it had refused to throw out the statute on its face but had ordered the lower courts to block applications of it that would run afoul of its case law.

The chief justice's own work was mystifying. He knew what was at stake: In an interview published in The Atlantic early last term, he argued, "If the Court in [the fourth chief justice John] Marshall's era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have." That, he said, "suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up." If the court does not "refocus on functioning as an institution," he argued, "it's going to lose its credibility and legitimacy as an institution."

Yet even having staked some of his prestige on unanimity, Roberts seemed willing to give up next to nothing jurisprudentially to achieve it. To be sure, he has largely refrained from piling on by writing concurring opinions or duplicative dissents. And he has sometimes declined to overturn precedents other conservatives wish to attack; for example, he and Alito did not vote to overturn the court's decision upholding the McCain-Feingold campaign finance law, preferring instead to carve out a yawning exemption from its strictures for certain types of "issue ads." Still, on the big votes, Roberts was just as predictable as every other justice last term, and he did not shy away from aggressive action he must have known would provoke liberal colleagues. Indeed, it was Roberts and Justice Stephen Breyer who, with equal fervor, went mano a mano over the legacy of Brown.

Particularly infuriating was the court's June decision on the use of race in public school placement. The justices cast their disagreement as one over the legacy of Brown v. Board of Education, attempting to argue that Brown required the holding they advocated and that the other side was betraying the Warren Court's proudest moment. This is utter nonsense on both sides. There is no dispute among the justices about Brown and its immediate progeny, which held that state-sponsored racial segregation was unconstitutional and, where it existed, race-conscious steps to dismantle it were proper, even required. The only dispute was over a question the court has never authoritatively answered and on which its prior pronouncements are in great tension: Whether and when, in the absence of state-sponsored segregation, race-conscious measures are appropriate to ensure ethnic diversity. To one degree or another, nearly all of the justices conflated these two questions, making the decision far more contentious than it needed to be.

Well, now it's a new day and a chance to start over. And who knows? A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them. But I'm not holding my breath. And I'm not excited about watching them try.
Benjamin Wittes is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.