Biases and precedents
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.
The justices of the U.S. Supreme Court.