Supreme Imbalance

We are now several weeks into the Supreme Court's 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconsed, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

In the media, we constantly read about how "closely divided" the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the "conservative" Justices - Scalia, Thomas, Roberts, and Alito; the "liberal" Justices - Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the "man in the middle." The impression created by such accounts is that this is an "evenly balanced" Court. This is a fallacy, and a dangerous one at that. What do we mean by "balance"? Why don't the many five-to-four decisions prove that this is a "well-balanced" Court?

The Supreme Court has discretionary jurisdiction. It generally agrees to decide only the "hardest" cases. What are the "hardest" cases? Most often, they are the ones about which the Justices are divided. That, indeed, is largely what makes them "hard." Thus, one can reasonably expect that the Supreme Court is most likely to hear those cases that will most sharply divide the Justices, because those are the cases about which the law is most uncertain. Even a Court consisting of nine Scalias or nine Ginsburgs would eventually wind up dividing five-to-four in the cases it agrees to decide, because it is the division within the Court itself that defines the cases that most demand the Court's attention.

The important question, then, is not whether the Court often divides five-to-four, but where on the constitutional spectrum the decisive Justice sits. Depending on the makeup of the Court, that Justice might split the difference between Scalia and Thomas, on the one end, or she might split the difference between Brennan and Douglas, on the other.

Within any set of nine Justices, some will be relatively more "conservative" and some will be relatively more "liberal." That they often divide five-to-four tells us nothing about "balance" and nothing about whether the Court as a whole is "liberal," "conservative," moderate, or whatever. It tells us only that the Justices often divide five-to-four, which tells us nothing about the Court as a whole.

The current Supreme Court is not "balanced" in any meaningful sense of that term. It is, in fact, an extremely conservative Court - more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.

• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.

• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.

• The so-called "swing vote" on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O'Connor to Kennedy.

• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.

• If we regard Warren, Douglas, Brennan, and Marshall as the model of a "liberal" Justice, then there is no one within even hailing distance of a "liberal" Justice on the current Supreme Court.

In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

Now, I know I have been tossing around the terms "conservative" and "liberal" as if they have clear, well-defined meanings, when of course they do not. In my next post, I will clarify what I mean by these terms.

This is the first in a series of six posts on the make-up and direction of the Supreme Court.

Comments

[bluesky49876]

I agree. I regard Supreme Court as any other political institution. Since it is appointed by the political parties, it is not an independent institution. That is the basic flaw in the U.S. judiciary. I respect the Supreme Court as much as I respect other political institutions.

[OrvilleHLarson]

A discerning comment.

The U.S. Extreme--er, Supreme Court is part court of law, part social and cultural arbiter. Its nine
ideologues in black robes are just as political as anyone else. They're all trying to get their personal and/or social views into the law.

They're appointed for life, they're unaccountable to anyone, and they know it.

[CDRUSNret]

Thanks for the 9th grade civics lesson, Geoffrey, but what's your point? I agree with bluesky...­.it's just another political institution. The dems will take the White House for a stretch when the older geezers on the court retire or die in their sleep and the court will move in the other direction.­.... and the country won't have become Nazi Germany or an Islamo-fascist republic in the interim.

[5yrsoftorturencounting]

The EXXON deal is a good example of the litigants that've been waiting for this court.

[schatsie]

Great article. Puts the story together succinctly. Looking forward to the rest of the articles.

[Lon]

There are a lot of good points here, although they are oddly mixed in with bits of nonsense. For example the fact that 14 of the last 12 nominees were appointed by republicans does not support the claim that the court is currently more conservative than recent courts, since it means the last 5 to leave were republican appointments. What is odd about this is that what is being proven is true, but the evidence does not support it.

And while it is true that the courts will take contraversial cases, these could be cases in which the court disagrees with a lower court, or lower courts disagree with each other, so there is nothing automatic about 5-4 votes. Those do seem to be on the rise.

What is right about the post is that the fact that Kennedy is the swing vote does not mean that he is not a conservative, just that the other four are more conservative.

It is also true that the conservatives are true believers in a way that the liberals are not.
So the conclusions above all seem right, even though some of the evidence given seems besides the point.

[AnotherunhappyDemocrat]

Well the last three to leave were Republican appointments. Clarence Thomas - five appointments ago - replaced Thurgood Marshall (LBJ) and Ruth Ginsburg - four appointments ago - replace Byron White (JFK).

[Sundialsvc4]

I'm sorry to say that every criminal enterprise must have its "fixers." This present cabal is no different.

[connorin]

right...th­at's why they wear brown shirts under their robes

[outnow]

Cops in robes are not judges, with all due respect to the real judges. The law is a stern mistress. You cannot serve two masters - corporate interests and the People's rights.