Over the last few weeks, I’ve been wondering: if anything, what makes a 5-4 decision of the US Supreme Court inherently good or evil? An overreach or a reasonable, logical conclusion? Illegitimate or patriotic?
The court is in the American right’s penalty box these days, having upheld the forces of moral decay and socialist health care at the end of June. Liberals continue to upbraid the Citizens United decision on campaign funding from 2010.
Like most of life, the answer is: It depends.
History counts, and knowing some is often a failing of the Internet’s instant pundits. Until John Marshall became Chief Justice in 1801, for example, the members of the court all issued opinions in every case. That practice, adopted from the English courts, led to decisions hard to understand or use as precedent; Marshall, heading the judiciary of a federation of states, felt the Court better did its work with clear, majority decisions; the first dissent was not published until 1805 or 1806. They remained rare, appearing in only about ten percent of Court decisions into the early 20th century (Thomas Jefferson’s Court appointments generated 60% of dissents in the 1801-1835 Marshall Court). A fine Harvard Law Review note on the history of Supreme Court dissents is worth a read here.
The infamous Lochner case of 1905, which declared a state ban on a work week of over sixty hours unconstitutional, uncorked the unanimous voice bottle, and the New Deal era drained it.
Dissents peaked in the 1950s, then settled into a new routine, where they were nearly always phrased as “respectful dissents,” not a back of the hand to the institution of the Court, or its members (The practice always had its critics; some, stridently so; in 1898 Louisiana’s constitution banned them. The practice did not last, as the state’s Supreme court demonstrated in a grudging 2015 order enforcing Obergefell).
So, over time, the Court moved from papering over its conflicts in the name unanimity and consistency to a for a stylized system of polite dissents that allowed the public a peek at the deliberate process: democracy, rather that backroom politics, in action. Professor Cass Sunstein, looking at the history of Court decisions, finds an ebb and flow of 5-4 decisions around a fairly consistent baseline:
Over recent decades, and under many different chief justices, the share of 5-4 splits in the Court's docket has been fairly constant -- on average, in the vicinity of 20 percent.
Is the Court always split between liberals and conservatives, or is there some other explanation?
Before trying to answer this, we need to look at the data. Since 1981, there have been four years that stand out for an unusually high rate of 5-4 splits: In 1986, 1989, 2000 and 2006, around 30 percent of court decisions were divided that way. Four other years in the same period show an unusually low rate: In 1984, 1987, 1991 and 2005, less than 15 percent of decisions were 5-4 splits.
But those are the outlier years, and given the relatively small number of cases, it would be a mistake to make much of them. In the other 23 years, 5-4 splits fell in the narrow range between more than 15 percent and 25 percent or less. Over the past three decades, there has been no substantial trend toward either fewer or more 5-4 splits -- or even any sustained period during which the percentage of 5-4 splits was unusually high or low.
Extend the viewscreen back to 1946, and you see broadly similar patterns. From 1946 to 1980, 5-4 splits often ranged from 15 percent to 25 percent.
In 2013, David Oedel, a constitutional law professor at Mercer University, wrote a Macon Telegraph op-ed arguing close decisions are better ones:
It can be surprisingly good for our country and legal system when a difficult case can successfully be resolved by a narrow margin, so long as the final decision rests on a sufficiently shared, coherent rationale.
Three factors support that view.
First, the public benefits from getting informed guidance on profound legal problems. The “big” cases are usually so important because they highlight inherent conflicts between core competing values.
Congress has the natural habit of getting stalemated when it gets close to big issues, too often leaving tough questions to languish unaddressed. The High Court has less flexibility to avoid dealing with the few tough matters that it agrees to hear. Even a 5-4 court vote typically produces something that Congress is increasingly incapable of producing: a workable, respected decision on a difficult issue.
So the first virtue of a well-constructed 5-4 court decision is that it produces an authoritative, workable resolution.
The second advantage of 5-4 decisions stems from the fact that, behind the scenes, they’re typically argued hardest. The court’s internal dance of spirited discussion and sharing of drafts has the effect of moderating the winning position in order to assemble the critical five votes, while generating better answers to opposing counter-arguments. We tend to get less extreme, more careful decisions in the hardest cases. That’s appropriate when the value judgments are so close to begin with.
Third, the court’s divisions often reflect divisions in society about the questions at stake. That suggests that the justices, though appointed for life, are actually lots more democratically grounded in the public’s reality than you might think. Photos of those stern, distant oldsters in their imperious black robes can be misleading.
By the measures I cite -- agreement by five thoughtful justices producing decisiveness, argument-tested moderation and sensitivity to the public’s views of the competing values at stake -- the three 5-4 decisions last week were good.
The Windsor decision, striking down part of the federal Defense of Marriage Act, found five justices acknowledging that people married in their states have a constitutional right of personal dignity associated with their marriages. The decision also reflects a deep-rooted presumption of “federalism,” meaning here that states should be allowed leeway to define marriage for their residents without undue federal interference.
In the decision about California’s Prop 8, a different coalition of the court, this one including Justice Antonin Scalia and Chief Justice John Roberts, produced a narrow ruling restoring gay marriage to California. It was on technical grounds that won’t extend to other states.
So the decisions together allow states experimenting with gay marriage to continue to do so, while letting other states alone. The two cases calm, for now, the seemingly intractable questions of gay marriage enough to permit the most vocal partisans to feel genuinely heard.
Another law professor, the University of Chicago’s Eric Posner, suggested a year later:
It’s often said the court should avoid disagreements because disagreement undermines its authority. But the real problem is not disagreement—reasonable people will always disagree about hard cases. The real problem is ideological disagreement. When the Republican-appointed justices and the Democratic-appointed justices divide 5–4, we suspect that they are not doing law but politics.
Posner wondered if 9-0 decisions- often praised as the mark of a harmonious, above-the-fray Court- reflect cases in which justice feel less ideological motivation to dissent- or the strategic skill some justices assigned the majority opinion have in threading their way between the preferences of their eight colleagues. He cites the scornful dissent of Justice Antonin Scalia, who, in such a case, said he was having none of that argle-bargle and flummery: “I prefer not to take part in the assembling of an apparent but specious unanimity.” That comment was in an abortion buffer zone case, where Scalia concurred in the outcome but disagreed with the reasoning, in what Harvard professor Lawrence Tribe called “yet another concurrence that reads like a dissent.” Tribe went on to note that this has become a feature of the Roberts Court- apparently unanimous decisions that just paper over unresolved issues that will rise again (This term, Scalia erupted again: “Dissenting in Obergefell, Justice Scalia accused the court’s liberals of a sort of intellectual dishonesty in joining Justice Kennedy’s opinion, which he charged sacrificed legal rigor for soaring language. ‘If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court’ that included such vague passages, he wrote, quoting one, ‘I would hide my head in a bag.’ Of course, he didn’t say it wasn’t a price he would pay, given the right case).
These cases make clear a point that I’m reminded anew of every term: the peril of counting votes rather than reading opinions. Too many observers...fall prey to the temptation to draw conclusions based on vote counts alone. As my colleague Cass Sunstein has persuasively argued, structural factors mean that we shouldn’t necessarily read 5–4 decisions as indicative of a partisan or polarized court. I’d add that this is especially true when the 5–4 split isn’t even along stereotypically ideological lines. And Judge Posner and his co-authors have made the complementary argument that, even in unanimous decisions, ideology can sometimes rest just beneath the surface. Votes alone do not a decision make.
Vote counting is easy, especially among point-scoring pundits and partisans who see the court as made up of “our judges’ and “theirs.” One sees this more profoundly in the rage of conservatives against Chief Justice Roberts for not doing as he was supposed to on health care- more than once, which just rubs salt in the wound.
When outcomes are expected to provide immediate gratification, it’s hard to see- outside the law school faculties- the merits of a hard-argued, closely divided Supreme Court decisions. A 5-4 decision can be overturned by the flip of one justice.
Justices know this, too. In recent times, Justices William Brennan, Sandra Day O’Connor and Anthony Kennedy have wielded enormous power as the “Swing” vote between two perceived, left-right blocs of four justices each. Brennan frustrated Chief Justice William Rehnquist for years under a rule the Court follows:
When the Chief Justice is in the majority at the conference discussion, the chief has the prerogative to assign the task of writing the majority opinion to another Justice in the conference majority. When the chief Justice is in the conference minority, the senior associate Justice in the majority makes the opinion assignment.
Brennan was a renowned schmoozer, skilled at getting on the right side of votes, outflanking Rehnquist, and pulling together majority decisions by holding his side united and pulling over one or two other justices.
Two weeks ago, New York Times reporter Adam Liptak noted the 2014-15 Supreme Court term was the most liberal in decades, again- as under Rehnquist- because conservatives couldn’t get their act together:
The court’s conservatives, by contrast, were often splintered, issuing separate opinions even when they agreed on the outcome. The conservative justices, for instance, produced more than 40 dissenting opinions, the liberals just 13.
The divisions on the right, Professor Posner said, may have occurred in part because the mix of cases reaching the court has invited a backlash. “Conservative litigators who hope to move the law to the right by bringing cases to the Supreme Court have overreached,” he said. “They are trying to move the law farther right than Kennedy or Roberts think reasonable.”
Partisans on both sides often make 5-4 decisions campaign fodder for the next election. “I will appoint justices who will overturn that,” is a popular promise, never mind that justices rarely die or retire at the optimal time, cases don’t rise through the appellate courts to a schedule, nor does the Senate stay in the right side’s control. It’s truly a Wimpy argument: I will gladly pay you Tuesday, for a hamburger today.”
Nor can one predict, with certainty, how a justice will decide cases over her or her term. David Souter was a reliable conservative who retired a reviled liberal nineteen years later. Felix Frankfurter was a New Deal activist when FDR put him on the court in 1938. He retired in 1962, at odds with practically the whole court over his hands-off philosophy and fear of hard decisions reducing the Court’s prestige.
The makeup of the court influences what it gets from below, too. Harvard law prof Cass Sunstein, writing for Bloomberg View in 2014, noted:
[I]magine that over the next decade, the only two justices to retire are the liberals Breyer and Ginsburg, and that they are replaced by people who tend to agree with Scalia and Thomas. In that event, the Court would have six conservatives, and its center of gravity would shift sharply to the right. Would we see a reduction in 5-4 decisions? Don't be sure, because lawyers and lower court judges are alert to the Court's composition. If it became dominated by conservatives, we would see a very different set of rulings from the lower courts, whose judges are not inclined to make a lot of decisions that are likely to be reversed.
The point is that the cases that the Court hears will always consist, in large part, of issues that are difficult not in the abstract but in light of the Court's particular composition. In the modern era, a significant number of 5-4 decisions is likely -- at least if the justices are not working hard to suppress internal dissent (as they did before the 1940s), and if lower courts are not systematically ignoring the Court's thinking.
It follows that any Supreme Court will probably seem "evenly divided" in a significant number of important cases. In a hierarchical legal system, the Court will end up hearing disputes that are likely to split its current members -- even if their ideology changes radically over time.
It’s also really hard to overturn Supreme Court decisions. You either amend the Constitution, or the Court has to do it themselves. This they tend not to like, for uncertainty about the law makes it hard to plan one’s life. Things should be steady and predictable, at least for a reasonable period of time. How long is reasonable is usually the question. In Lawrence v. Texas, which overturned that state’s criminalization of consensual sexual activity in 2003, Justice Antonin Scalia complaine bitterly that the court’s previous ruling upholding Georgia’s law had been overturned in just seventeen years.
Scalia went on to add- because he likes to pick and choose his originalisms in interpreting the law- “I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine.” (A nice irony, given conservatives’ outrage over the Obama administration’s and various state’s attorneys general’s decisions not to defend the Defense of Marriage Act, is that when Lawrence was accepted for review, Texas Attorney General John Cornyn, running for the US Senate, refused to defend the state’s criminal sex law).
Difficulties and impracticalities animate others, marathon activists who see every Supreme Court decision as part of an endless, existential struggle, one in which even a win is not good enough if it is not a stomp-’em-dead, erect a triumphal monument in the public sqaure of Sparta win. After the 5-4 Hobby Lobby case, one two-cheerser-for-democracy declared: “The very fact that such a basic Constitutional question for a free nation was only decided 5-4, tells you that the nation is on the knife’s edge legally. The cultural left is going to keep pushing.” Many reactions to the Obergefell decision have taken heart from the Rights’ half-century campaign to bleed Roe v. Wade to death with hundreds of annual, state-by-state abortion restrictions until, finally, there is substantively no right left to claim- or enforce.
In the end, it’s a matter of competing human needs: change and adaptability versus stability and settledness. Those seeking absolute metaphysical certainty in a judicial opinion will always be disappointed. Things change. Ideas change. People change. The law allows for that.
Everything else is how, when, why, or why not. In the meantime, watch for those upset by the Obergefell Five’s apostasy to canonize a different five in some, future decision they like. Odds are, it will happen next spring.