Supreme Court conservatives: Disagreements make the court more liberal.

The Supreme Court’s Conservatives Can’t Agree on Anything

The Supreme Court’s Conservatives Can’t Agree on Anything

Eric Posner weighs in.
June 30 2015 3:26 PM

A Fractious Majority

The Supreme Court’s conservatives increasingly disagree with one another.

U.S. Supreme Court Justices Clarence Thomas, Antonin Scalia, Ant
Supreme Court Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy, John Roberts, and Samuel Alito aren’t always on the same side.

Photo illustration by Slate. Photos by Mark Wilson/Getty Images; Paul Morigi/Getty Images; Mark Wilson/Getty Images; Paul J. Richards/AFP/Getty Images

In 2010, the New York Times’ Supreme Court reporter, Adam Liptak, wrote an article entitled “Court Under Roberts Is Most Conservative in Decades.” He noted that in its first five years, Chief Justice John Roberts’ court had rendered conservative decisions 58 percent of the time, and in the 2008 term 65 percent, the highest rate in a half-century. The court was “the most conservative one in living memory.” Republicans, who have been trying to move the court to the right since Nixon was president, finally had put into place a rock-solid conservative majority.

On Monday, Liptak and some co-authors published another article, this one entitled “The Roberts Court’s Surprising Move Leftward.” It turns out that the most recent term will be the most liberal since 1969, with liberal decisions accounting for 56 percent of the cases, according to the article. Liberal decisions outnumber conservative decisions over each of the past three years, the first time that has happened since the 1960s. What happened?

Liberals credit—and conservatives blame—Republican-appointed Justice Anthony Kennedy for frequently crossing the line and voting for liberal outcomes. It was Kennedy who wrote Obergefell v. Hodges, the opinion recognizing a right to same-sex marriage. However, Kennedy has been Kennedy since he was appointed in 1988. He has written opinions friendly to gay rights since 2003. Kennedy himself can’t explain a trend.

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What does seem to be new, however, is that the Republican appointees on the court have found it increasingly difficult to form a united front against the Democratic appointees. The chart below shows that in the term that just concluded, this trend of disagreement among conservatives accelerated.

chart: How Often Do Supreme Court Justices Agree With One Another?

The chart shows the percentage of cases in which conservative justices agree with other conservatives, and liberal justices agree with other liberals. The liberals vote with one another more than 90 percent of the time while the conservatives vote with one another about 70–80 percent of the time. While I lack Frank Luntz’s talent for political wordplay, I humbly submit to right-wing operatives that they should call the Democratic appointees “lockstep liberals” because of their bloc voting.

You can also see this pattern in the justices’ decision writing. Most of the justices wrote six or seven majority opinions over the term. But there is wide variation in their propensity to write separate concurrences or dissents. Justice Elena Kagan wrote three separate opinions; Justice Ruth Bader Ginsburg wrote six; Justices Sonia Sotomayor and Stephen Breyer wrote eight each. Roberts and Kennedy also wrote very few. By contrast, Justice Antonin Scalia wrote 26, Justice Clarence Thomas wrote 25, and Justice Samuel Alito wrote 20.

Minorities can exercise surprising power when they exercise discipline in voting. A fractious majority—here the five Republican appointees—will find themselves on the losing side again and again if one of their own temporarily defects to the other side because of a strongly felt position on an obscure point of law.

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Why can’t the Republican majority exercise more discipline? One possible explanation is ideological disagreement. Mirroring the Republican Party, the Republican justices divide between social conservatives (Scalia, Thomas, probably Alito, and possibly Roberts) and a libertarian, Kennedy, who often casts his vote with the liberal bloc.

As the court moved right during the first half of Roberts’ tenure, conservative litigants may have spotted the opportunity to obtain favorable decisions. To do so, they needed to challenge laws and precedents that in the past would have been secure. It is possible they overreached by bringing challenges that were more extreme than all five of the conservative justices could stomach, exposing the latent ideological fissures that existed between them.

Another explanation is jurisprudential disagreement. Here the division is between formalists (Scalia and Thomas) and pragmatists (Roberts, Alito, and Kennedy). The formalists interpret the Constitution based on its original meaning and read statutes narrowly rather than expansively (or claim to). Originalism usually generates conservative outcomes because the Constitution reflects mostly 18th- and 19th-century values. Narrow interpretation of legislation—as illustrated by Scalia’s dissent in King v. Burwell, which would have invalidated a key element of Obamacare based on a narrow interpretation of some of its language—tends to favor conservative outcomes because legislation usually expands government control. But not always, with the result that Scalia and Thomas sometimes come down in a liberal direction.

The pragmatists, by contrast, put more weight on precedent and usually unarticulated extra-legal factors. It is widely thought that Roberts, for example, has voted, twice now, to uphold Obamacare against challenges from the right because he believes that the obliteration of a major piece of legislation by an ideologically predictable 5–4 vote would deal a blow to the court’s credibility. Nearly everyone thinks that Kennedy has followed public opinion on gay marriage. Whatever his personal views, he would not have found a right to same-sex marriage in 1988, when it was anathema to both parties and a majority of Americans. His talentless writing style, replete with cheesy Hallmark-card sentimentality, sets the teeth of the other conservatives on edge, but it reflects a distinctive jurisprudential sensibility that he has stubbornly held to, though no one can figure out what it is.

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The conservative justices also disagree with one another in more subtle ways. In King v. Burwell, Roberts and Kennedy rejected the narrow interpretation of the statute advanced by Scalia, Thomas, and Alito. In Zivotofsky v. Kerry, a case decided earlier this month, Thomas split with the other conservatives on the breadth of the president’s power to control information put in passports. In Johnson v. United States, a case decided on Friday, Alito dissented alone as the other justices struck down a federal statute that enhanced sentences of people who had earlier been convicted of “violent felonies.” The other justices thought the term was unconstitutionally vague; Alito thought its definition could be narrowed. In all these cases, the liberals voted with the majority and kept mum.

While partisan heterodoxy among the Republicans has grown in recent years, it is not new. Republican appointees John Paul Stevens, Sandra Day O’Connor, and David Souter all crossed party lines to vote with Democratic appointees on some of the most important issues of the day (abortion, campaign finance, rights of criminal defendants). By contrast, it’s hard to think of significant examples of liberal justices doing the same. Their loyalty to the party line is virtually unbroken.

I wish I could explain this asymmetry, but I can’t. A common explanation offered by disgruntled conservatives—that spineless justices newly arrived from the provinces want to bask in the approval of the liberal media in D.C.—strikes me as pretty implausible. Liberals will never trust Kennedy—remember that he voted to strike down Obamacare three years ago. In a polarized environment, no one respects moderates, even if they can sometimes be made use of. Of all the justices, Kennedy is the most frequently ridiculed. No one seems to admire him for his independence of mind.

Conservatives might be tempted to think that the Republican-appointed justices disagree so often, and write so frequently, because they take the law seriously while the liberals care only about pleasing the party base. If this is true, however, conservatives might wonder whether they are being well served by their justices. Our society has assigned legislative power to the Supreme Court, authorizing it to settle the hardest political questions by fiat. Gay marriage and Obamacare are now unshakable political facts in America, and will remain so long after the jurisprudential debates among the conservatives have been forgotten.