The Supreme Court Breakfast Table

Not Your Typical Term
An email conversation about the news of the day.
June 23 2008 9:33 AM

The Supreme Court Breakfast Table

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Good morning, everybody. It's a pleasure to belly up to the table with you.

Dahlia, I want to pick up on your question about the voting patterns on the court this year. With the huge caveat that we'll see what happens with the pending decisions on gun control, the death penalty for child rapists, and punitive damages, many people are buzzing about the fact that the court this term has not fallen into a predictable 5-4, liberal/conservative + swing-vote-on-either-side pattern. On cases ranging from voter identification and  lethal injectionto child pornography, international treaty protections for criminal defendants, and employer communications about unions, the Supreme Court has decided cases by votes of 7 to 2 and 6 to 3, rather than the bare majority 5-4 cases that have dominated public perception in recent years. Although the court's blockbuster Guantanamo case was decided along familiar lines on a 5-4 vote (Justice Anthony Kennedy plus the four "liberals"), that exception seemed to prove the rule this term. "Swing" voter Kennedy has been on the losing side in four of six 5-4 decisions so far, for example, and only one other 5-4 decision has seen all four "liberals" together on the same side of the case.

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As you point out, Dahlia, commentators have offered a range of intriguing theories for this development, including the idea that justices like John Paul Stevens and Stephen Breyer are sometimes voting with the "conservatives" to shape and steer the outcome in more moderate directions and the notion that Chief Justice Roberts is successfully crafting a winning center. But I think lying in plain sight is a far more obvious explanation: I think it much more likely that the unexpected voting patterns this term result from the fact that the justices actually approach the cases as legal cases, rather than political platforms, and that the nuances of each case actually matter. In this view, the Supreme Court actually functions like a court, as it should, rather than as a predictable political player.

To take just one example, in the voter identification case, Stevens' plurality opinion upholding the Indiana law requiring government-issued photo ID to vote repeatedly emphasizes the absence of facts in the record about identifiable harm from the law. Stevens believes deeply in the crucible of litigation and in the importance of the actual record of a case. This perspective has informed his views in opinions hailed by liberals, as in his dissent in Bush v. Gore, and reviled by liberals, as in his opinion for the court in the Paula Jones case. It should not be surprising to find that a case with a weak factual record failed to persuade him. Nor does it take sophisticated detective work or attribution of hidden political motives to understand the basis for his position.

I know Justice Stevens well from having clerked for him. Most fundamentally, his votes and opinions this term vividly illustrate the danger of pigeonholing him. It is worth remembering that, before he began to be lionized as the "leader of the liberal block," he was commonly termed a "maverick." And, as his record this term confirms, the most accurate label for him actually is the description that was used when he was nominated to the court almost 33 years ago—a "judge's judge."

Whatever one thinks of the outcome in particular cases this year, I think it's a breath of fresh air to see not only Justice Stevens, but the Supreme Court as a whole departing from rigid predictability. It's especially interesting to observe this development in the last year of President Bush's tenure, a tenure that began with what seemed to be the astonishingly weak decision in Bush v. Gore. I find it refreshing to see the court defying ideological type and confounding pundits.

What do you think? Is this too simplistic an explanation for the way the court has shuffled the deck this term?

Best,

Cliff

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.

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