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Who’s the most cuddly Supreme Court justice? There’s little doubt that Chief Justice John Roberts is the most handsome, but Clarence Thomas is arguably the most Papa Bear-ish. If I were choosing one to be my grandpa, however, the avuncular John Paul Stevens would undoubtedly be my pick.
If, like me, you’ve been pondering the all-important Supreme Court cuddleability index, it’s likely thanks to Jeffrey Rosen. “[T]he court’s term was something of a group hug between the liberal and conservative Justices,” he wrote last week for Time, arguing that Chief Justice Roberts had found a strategy for fostering détente in the narrowly divided court. (If “group hug” doesn’t conjure adequately disturbing images for you, Rosen also describes this court term as a “bipartisan lovefest” in The New Republic.) Pointing out that only 17 percent of this year’s cases were decided by a five-to-four split (a figure that indicates how often the evenly split Supreme Court divides into relatively predictable liberal and conservative camps), down from 33 percent last term, Rosen concludes that Roberts did precisely what he “promised to do at the beginning of his tenure … use his power to assign majority opinions to promote narrow decisions agreed to by wide, bipartisan majorities rather than by polarizing splits.”
But CBS’s Andrew Cohen reached a very different judgment based on the same findings of fact. “Trends?” he scoffs. “At essence, they all point in the same direction as they did last year at this time. Chief Justice John G. Roberts Jr.’s oft-cited dream of more jurisprudential harmony from the Justices (in the form of more unanimous decisions) remains just that; a fantasy that is no closer to coming true in 2008 than it was in 1998 or 1988.” And in a National Review Online article entitled “What Happened to the ‘Conservative Court’?”, Jonathan Adler notes that, “[d]uring the 2007-08 term, the Court was neither particularly conservative nor starkly divided.”
It looks like the press is as split as the narrowly divided court. Or the court that everyone expected would be narrowly divided but isn’t—wait, which is it?
Part of the reason observers can reach such different conclusions about the Supreme Court, when basing their interpretations on court statistics, is that they are looking for trends based on the thinnest of data. The just-completed term was the third Supreme Court season with Chief Justice Roberts in charge, and three data points does not a trend make. It is true that five-to-four decisions fell from 33 percent to 17 percent between 2006-2007 and 2007-2008. But they jumped from 13 percent to 33 percent between 2005-2006 and 2006-2007. As calculated in ScotusBlog’s StatPack, the final years of the Rehnquist court saw terms in which five-to-four decisions accounted for as many as 30 percent of total decisions (2004-2005) and as few as 19 percent (2002-2003). If the Roberts court follows the Rehnquist precedent, it would be unremarkable to see its five-to-four tally revert to the 30 percent range next year.
Moreover, the court passed judgment on only sixty-seven cases this year, the fewest in more than fifty years. If only a handful more cases had been decided by five-to-four majorities, the court would seem almost as divided as ever. This term’s relatively low rate of five-to-four decisions is probably more the result of the particular issues that came before it than Roberts’s leadership.
Supreme Court observers have even less ground to stand on when they draw their conclusions from the fact that a substantial portion of five-to-four decisions resulted from ideology-defying alliances. The liberal John Paul Stevens joined with the conservative wing (Roberts, Scalia, Thomas, and Alito) on the Izarry case, for example, while Chief Justice Roberts and arch-conservative Clarence Thomas joined with liberals Stevens, Souter, and Breyer on Kentucky Retirement v. EEOC. ScotusBlog calculates that 32 percent of the five-to-four decisions were produced by such unlikely bedfellows this term, as opposed to only 21 percent in 2006-2007. However, the absolute number of nonideological majorities was the same: five of twelve in 2007-2008, and five of twenty-four in 2006-2007.
All observers are agreed that, regardless of the court’s current trajectory, the addition of another conservative justice could tilt it sharply to the right. Even if Rosen is correct that Roberts is strategically crafting decisions to build broader majorities amongst the sitting justices, Roberts has clearly shown himself to be solidly conservative—he and Justice Scalia agreed more often this term than any other two justices. Given a clear conservative majority, Roberts could chart a very different path—and no one will have to stretch statistics to intepret its trajectory.
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