“If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”
“And that’s just not how — we don’t work as Democrats or Republicans.”
— Chief Justice John Roberts
Over the past several decades, both of America’s major political parties have done a bang-up job of making political hay out of the Supreme Court appointment process. Each has used high court vacancies as a tool to encourage voters, and to energize their base to get out and vote. In order for that to work, the American public must be convinced that the High Court regularly decides cases based solely on lines of political ideology.
Battling against this perception is Chief Justice John Roberts, who has made it his mission, since he ascended to the highest judicial position in America, to strike continual blows for judicial independence, and to bolster Americans faith in their legal system. Earlier this year, the Chief Justice issued the extraordinary statement that, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” And he has said in more than one interview that he most admires Chief Justice Charles Evans Hughes for deftly leading the High Court through the court-packing attempt by President Roosevelt in 1937 (perhaps without any irony, since the still horrible court-packing idea has begun to be floated again).
Precisely because Supreme Court justices rarely speak publicly outside of their written opinions and occasional lectures at law schools and similarly stodgy events, they are highly unlikely to drown out the drumbeat of the 24/7 politically driven news cycle. But Roberts has one major thing on his, and the Supreme Court’s, side- the facts. The claim that the Supreme Court is highly partisan and frequently decides cases on ideological divisions is quite simply and demonstrably false.
The High Court has decided 59 cases so far this term, counting the four decisions the Court issued yesterday. A full 51% of those cases (30 of 59) have been decided unanimously. A Court that decides half of its cases without dissent can hardly be said to be highly divided. But even that statistic does not paint the full picture. Five more cases have been decided with just one dissent, and four more with only two justices disagreeing. That means that two thirds of the Court’s cases are decided 7-2, 8-1, or 9-0.
You might yet raise a red flag and wonder if that means that the remaining third of the Court’s cases are decided by the five ‘conservative’ justices outvoting the four “liberal” ones. But again that’s not the case. Eight cases have been decided 6-3, meaning only twelve out of 59 (20%) have been decided 5-4. And even that stat is misleading. Because of those twelve cases only FIVE have been decided along lines drawn by the political affiliation of the President who appointed the Justices.
That also means that more cases (seven versus five) have been decided by one of the conservative Justices joining the four liberals than by the five conservatives together. In a variety of 5-4, 6-3, and 7-2 decisions, Chief Justice Roberts has sided with the liberal bloc twelve times, Justice Kavanaugh nine times, Justice Thomas seven times, Justice Alito six times, and Justices Gorsuch four. We’ve also seen dissents in which Justices Sotomayor and Ginsburg joined the conservatives, Justice Breyer joined some portion of that group (three separate times), Justice Kagan sided with Justices Thomas and Gorsuch, and two separate dissents in which Justices Ginsburg and Gorsuch agreed.
As if we didn’t have enough evidence from this term, the Justices surprised court watchers again on Monday when they ruled that the Virginia House of Burgesses did not have standing to challenge the ruling of a lower court finding that newly drawn congressional districts were racially discriminatory. Justice Breyer joined the dissent, ruling that the Virginia legislators should have been permitted to raise the challenge, and Justices Gorsuch and Thomas joined Justices Kagan, Sotomayor, and Ginsburg in a majority opinion that was further proof that even on political subjects, these Justices are not predictable.
If ever there was a case that one would expect to split 5-4 it was Thursday’s First Amendment case interpreting the Establishment Clause. But once again, the Court surprised. The decision will be recorded as 7-2, but the five Justices who joined the primary opinion were the Chief and Associate Justices Alito, Kagan, Breyer, and Kavanaugh- a mishmash of political, ideological and religious backgrounds. Only Justices Sotomayor and Ginsburg dissented.
The High Court has several cases yet to decide, and its most contentious cases are usually the last to be announced, so the percentage of unanimous decision will likely drop slightly before the term is out. Despite that, the 2018-19 term has shown once again that while the Justices are women and men with differing opinions on concepts of legal interpretation, even the wisest prognosticators are but guessing when they try to read the Supreme tea leaves.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.