The myth of a 5-4 court

“Like all human institutions, the Supreme Court must earn reverence through the test of truth.”

— Justice Felix Frankfurter, 1927

“It is nine men, nine very human men participating in a process that can be impressive or disturbing, grave or funny. And contrary to the general impression, the process is more visible than most of what goes on in government.

— Anthony Lewis, 1965

Based solely on what you hear about high profile cases before the U.S. Supreme Court, it would be easy to believe that a large percentage, if not nearly all of the Court’s decisions were decided 5–4 along ideological lines. Recent headlines have upped the ante with stories on the web in the last few days claiming that this is the “most conservative Supreme Court ever” (Washington University) and that the Supreme Court is “at stake” in this year’s Presidential election (Michelle Obama).

Those who watch the Supreme Court in the same way that most people watch college football know that the Supreme Court is not divided nearly as often as it is made out to be. Even more noticeably, the Court is rarely divided in the ways that people would expect it to be.

The Supreme Court issued four decisions in the first two days of this week. That brought the total number of decisions issued this year to 49. Of those forty-nine decisions, 57 percent were unanimous decisions of the Court. In fact, many Court watchers have agreed that since his appointment in 2005, Chief Justice Roberts has worked hard to find common ground in cases on which most or all of the Court’s Justices can agree.

This is demonstrated by the fact that among those 49 decisions, Roberts had dissented from the majority only three times — all three of them in 5–4 cases. In fact, only the Court’s newest Justice, Elena Kagan (also three) and the Justice considered to be in the middle of the political spectrum, Anthony Kennedy (one) had as few or fewer dissents.

So just how often do 5–4 decisions occur? Of the 49 decisions in this 2011–2012 court term only five of them have been decided by 5–4 votes. Of those five cases, the Court’s four conservative Justices were in the minority on three and the Court’s four liberal Justices were in the minority on two. Justice Kennedy was in the majority on all five. To put that another way, only twice this term (4.1 percent of cases) have the Court’s four liberal Justices been together in the minority in a 5–4 decision. In fact, while Justice Ginsburg has the most dissents (10), Justice Scalia is second with eight. The four liberal Justices have dissented only four more times in total than the four conservative Justices.

If you’ve read this far, you may be asking yourself why this is important at all, why it matters what the votes in cases are. The simple answer is that it matters because of the role that the Supreme Court plays in American society. As the final arbiter of the constitutionality of legislation, public confidence in the fundamental fairness of the judiciary rests tenuously on the public’s perception of the motives of the Justices — motives which are frequently overly attributed to political leanings.

That is not to say that Supreme Court Justices do not have judicial and political ideologies. Certainly, they do and particularly as to their judicial theories, one would expect them to put those theories into practice in the manner in which they consider cases. Many of the Court’s 5–4 decisions come in cases involving political or social hot-button issues. This in itself is a self-fulfilling prophecy, however. One cannot categorize the Justices along politically ideological lines and then be surprised when they divide along those same lines. That would be like categorizing the Justices based on height and then complaining that the taller ones were always tall.

In fact, one could just as easily divide the Justices based on their theories on religious freedom, commercial litigation, law enforcement powers, home owner rights or a variety of other categories. In so doing, one would find a variety of cases in which the lack of politics would make strange bedfellows. Already this year there have been cases in which Justices Breyer and Alito have joined in dissent and in which Justices Scalia and Ginsburg have joined in dissent.

The most watched case of this term — involving health care — will be decided later in this term. Whether the Court finds common ground in the case or breaks along a 5–4 decision, the words of John Adams ring true, “The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”

David Hejmanowski is a magistrate and court administrator of the Delaware County Juvenile Court and a former assistant prosecuting attorney.