Linda Greenhouse has this article in Friday's New York Times, asking, "Where have all the 5-to-4 decisions gone?" Her approach is to look at the court entirely on a simple, one-dimensional liberal v. conservative scale, as if there is nothing else to consider. She looks at the lethal injection case, Baze v. Rees, the voter ID case, Crawford v. Marion Co. Elec. Bd., and United States v. Williams, the child pornography case, saying that it is not surprising that the government won all three but that it is surprising that none was 5-4. She also notes that Justice Kennedy is casting the deciding vote much less often than last term.
And what is the reason for the dearth of 5-4 decisions this term? Ms. Greenhouse hypothesizes that the "liberals" on the court are gaining concessions from the "conservatives," getting narrower decisions in return for broader agreement. The thought apparently never enters her head that the legal world is not as simple as liberal v. conservative, that simplistic labels do not fully describe people's views, and that the mix of cases may affect how well or how poorly those labels predict actual votes.
The notion that everyone can be plotted on a simple, one-dimensional scale from left to right is a simplified model of reality. Like most simplified models, it has its uses, but it can give wildly wrong answers if used blindly, without awareness of its limitations. In the Supreme Court, there are some cases where one can predict the Court will divide along this ideological line, and there are other cases where it will not. Missing from Ms. Greenhouse's analysis is the awareness that this term has a number of cases that cut across the standard lines.
First, there is the continuing saga of the Apprendi line of cases, involving the right of jury trial and sentencing. This line of cases has defied the standard labeling. Frequently, the most "liberal" and most "conservative" justices were in the majority, with the "moderate" justices O'Connor and Kennedy in the dissent. Now we have the work of cleaning up the debris left by Booker's application of Apprendi to rewrite federal sentencing law. The Gall and Kimbrough cases this term are part of that clean-up effort, and no one who has been paying attention should be surprised that they did not fall along the one-dimensional ideological line.
Danforth v. Minnesota provided us with one of those unusual SCOTUS criminal cases where the federalist argument favored the defendant. People who view the world through a polarized political lens tend to think that everyone else does, too, and that federalism is nothing but a cloak for underlying policy positions. Some fair-weather federalists do indeed abandon the Tenth Amendment at the drop of a hat, but a great many others genuinely believe in maintaining the line between state and federal powers as an end in itself, and some of them are on the Supreme Court. Again, no attentive observer who is not blinded by partisanship should have been surprised to see the most "conservative" justices vote for the defendant in this case.
Medellin v. Texas gave us the strangest bedfellows of the term. The Solicitor General for the "conservative" Bush Administration argued as amicus in support of a gang-rapist/murderer against the SG for very "conservative" State of Texas. There is an axiom in politics that "where you stand depends on where you sit," and the Medellin case involved the question of presidential power over a matter of foreign affairs impacting the execution of a state criminal judgment. Institutional concerns trumped ideology in the advocate lineup, and the fact that Justice Stevens concurred in the judgment is not a shocker.
Sometimes a party loses simply because his case stinks. That was the situation in Baze. The attack on lethal injection was exposed for the tripe that it is. Even the dissent would have affirmed if Kentucky had used the same measures used in Florida, California, and several other states. Ms. Greenhouse's thesis that the "conservative" justices moderated their position to avoid a 5-4 split on whether to uphold Kentucky's protocol is laughable. First, if they were going to do that, it would have been to get an actual majority opinion. When the Court splinters like it did in Baze, there has been no compromise with the justices writing separate concurrences. The compromise effort, if any, has failed. Second, the idea that the "liberals" extracted an opinion that held the door open to more injection litigation than the justices in the lead opinion wanted is refuted by the key paragraph of that opinion, discussed here.
All these nuances are lost when one insists on viewing everything on simple liberal-conservative lines. Turning the simile knob to audio, analyzing the Supreme Court this way is like listening to a symphony on a 1962-vintage transistor radio. Yes, you can hear the basic melody that way, and you can recognize Beethoven's Fifth when you hear it, but all the overtones are stripped out, and the vibrance that makes it a great piece of music is missing. If you want to really understand the Supreme Court, you must recognize the liberal-conservative model for the oversimplification that it is, and you must keep in mind that other vectors may pull the decisions in directions that model cannot predict.
Leave a comment