Bi­ases and prece­dents

The Washington Post Sunday - - SUNDAY OPINION - BY STEVEN V. MAZIE

The Supreme Court re­sumed its work last week with the sup­port of only 48 per­cent of Amer­i­cans — a three-decade low. The court has of­ten been a light­ning rod of con­tro­versy in its 226 years, but never be­fore have so many darts been lobbed at the in­sti­tu­tion from so many points on the po­lit­i­cal spec­trum.

Mike Huck­abee, the GOP pres­i­den­tial can­di­date, calls the June de­ci­sion giv­ing gays and les­bians a right to marry an ex­er­cise in “ju­di­cial tyranny.” For Sen. Ted Cruz (Tex.), another Repub­li­can pres­i­den­tial hope­ful, the court is en­gaged in “naked and shame­less ju­di­cial ac­tivism.” Cruz says that Chief Jus­tice John G. Roberts Jr., whose nom­i­na­tion he sup­ported a decade ago, “put on an Obama jersey” when he wrote the 6-to-3 de­ci­sion sav­ing the Af­ford­able Care Act from a po­ten­tially fa­tal chal­lenge.

Lib­er­als ap­plaud some of the court’s most re­cent rul­ings, but many on the left were in­fu­ri­ated by a 2013 de­ci­sion gut­ting the Vot­ing Rights Act and by Cit­i­zens United v. FEC, a rul­ing from 2010 that up­ended cam­paign­fi­nance laws. Pres­i­dent Obama crit­i­cized Cit­i­zens United in his 2010 State of the Union ad­dress and Hil­lary Clin­ton, the front-run­ner for the 2016 Demo­cratic pres­i­den­tial nom­i­na­tion, has said she “will do ev­ery­thing I can to ap­point Supreme Court jus­tices who . . . do not pro­tect the right of bil­lion­aires to buy elec­tions.” Some lib­eral law pro­fes­sors re­flect­ing on these and other de­ci­sions con­tend that the Supreme Court is not a court but a “su­per­leg­is­la­ture” (Brian Leiter of the Univer­sity of Chicago) or “an ul­ti­mate po­lit­i­cal veto coun­cil” (Eric Se­gall of Ge­or­gia State Univer­sity).

No one can deny that Supreme Court jus­tices are pow­er­ful. Once seated, they an­swer to no one. They set their own agenda, tak­ing only cases that at least four jus­tices deem wor­thy of their at­ten­tion. The jus­tices of­ten vote in pre­dictable ways, mak­ing it im­pos­si­ble to ar­gue that world views play no role in their de­lib­er­a­tions. But a closer look sug­gests that deep skep­ti­cism about the le­git­i­macy of the court­may be overblown.

Year in, year out, the jus­tices is­sue more unan­i­mous opin­ions than 5-to-4 de­ci­sions. Their last term was one of the most bit­terly di­vi­sive in re­cent mem­ory, but they still ended up 9 to 0 in 41 per­cent of ar­gued cases, com­pared with 29 per­cent for 5-to-4 splits. The pre­vi­ous year, the jus­tices handed down 9-to- 0 de­ci­sions a whop­ping 66 per­cent of the time and 5-to-4 de­ci­sions in only 14 per­cent of cases.

And when the jus­tices dis­agree, they rarely split neatly along ide­o­log­i­cal lines. In fact, of the 66 cases de­cided in the term that ended in June, only five re­sulted in a ra­zor’s-edge split along the left-right fault line. In the pre­vi­ous term, there were four. In sharply con­tested cases, both lib­eral and con­ser­va­tive jus­tices break the mold more of­ten than ca­sual observers may re­al­ize. And last term, the con­ser­va­tives were par­tic­u­larly will­ing to strike out on their own.

In ad­di­tion to his vote en­rag­ing con­ser­va­tives in the Oba­macare case, Roberts, along with Jus­tice Sa­muel A. Al­ito Jr., joined the lib­eral jus­tices in ex­pand­ing pro­tec­tions for women against preg­nancy dis­crim­i­na­tion in the work­place. The chief also sided with the court’s four lib­er­als in a dis­pute over whether the First Amend­ment per­mits a rule ban­ning ju­di­cial can­di­dates from per­son­ally so­lic­it­ing funds for their cam­paigns.

That’s not all. Ul­tra­con­ser­va­tive Jus­tice Clarence Thomas joined the four lib­er­als against his right-wing brethren to al­low Texas to refuse to is­sue a li­cense plate fea­tur­ing the Con­fed­er­ate bat­tle flag. Jus­tice An­thony M. Kennedy broke from his col­leagues on the right not only in the same-sex mar­riage rul­ing (which he au­thored) but also in four other sig­nif­i­cant cases, in­clud­ing ones con­cern­ing ger­ry­man­der­ing and civil-rights pro­tec­tions for racial mi­nori­ties.

These pair­ings sug­gest that nei­ther ide­ol­ogy nor par­ti­san­ship plays a decisive role in the jus­tices’ rul­ings. Yet moral and po­lit­i­cal judg­ment is of­ten in­escapable when the Supreme Court must de­cide what counts as “lib­erty,” “equal pro­tec­tion of the laws” or “cruel and un­usual pun­ish­ment.” These and many other pro­vi­sions in the Con­sti­tu­tion are hardly self-ex­plana­tory, and it is no sur­prise that nine in­tel­li­gent lawyers will come to dif­fer­ent con­clu­sions, in­formed by clash­ing moral prin­ci­ples and ju­di­cial philoso­phies, when in­ter­pret­ing them.

Un­like mem­bers of Congress, who are un­der no par­tic­u­lar obli­ga­tion to jus­tify their votes to the public, the jus­tices pre­pare lengthy, care­fully ar­gued opin­ions ex­plain­ing their de­ci­sions. A cynic might dis­miss these as mere ra­tio­nal­iza­tions, but the lead-up to ev­ery rul­ing is suf­fused with crit­i­cal anal­y­sis of rea­soned ar­gu­ments. The jus­tices cer­tainly have their bi­ases and predilec­tions. But once a case is on the docket, it can be re­solved only through a rig­or­ous process that cul­mi­nates in an anal­y­sis of how laws, prece­dents and le­gal tra­di­tions bear on the is­sue.

Another big year is un­der­way at the Supreme Court. The jus­tices will soon take up cases in­volv­ing ju­ve­nile crim­i­nal jus­tice, vot­ing, public unions, af­fir­ma­tive ac­tion and — likely — re­li­gious lib­erty and abor­tion. Come June, if observers’ early pre­dic­tions pan out, it may be the lib­er­als’ turn to lament many of the out­comes of these cases. No mat­ter which way these rul­ings go, how­ever, they won’t be ev­i­dence of a court gone rogue against the Amer­i­can peo­ple.

Steven V. Mazie is Supreme Court cor­re­spon­dent for the Economist. He is the au­thor of “Amer­i­can Jus­tice 2015: The Dra­matic Tenth Term of the Roberts Court.”

When the jus­tices dis­agree, they rarely split neatly along ide­o­log­i­cal lines. In fact, of the 66 cases de­cided in the term that ended in June, only five re­sulted in a ra­zor’s-edge split along the left-right fault line.

LARRY DOWN­ING/REUTERS

The jus­tices of the U.S. Supreme Court.

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