Now that the current term is over for the Supreme Court, analysts are digging into the record to draw conclusions about what happened. In a fascinating analysis, Adam Liptak writes: Right Divided, a Disciplined Left Steered the Supreme Court.
The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline on the left side of the court and disarray on the right.
In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.
They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.
“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.
For example, this session there were 19 SCOTUS decisions that were decided 5/4. In 10 of those, the four liberals voted together and were joined by one conservative. In contrast, the conservatives only voted together 5 times.
Ian Millhiser suggests that the problem for the conservative justices is that they “represent three – and possibly as many as five – distinct versions of judicial conservatism.”
* The Ideologue – Clarence Thomas
* The Partisan – Samuel Alito
* The Reaganite – John Roberts
He points out that Scalia purports to be an “originalist” (like Thomas), but mostly votes as a partisan. And he can’t seem to find a way to characterize Kennedy.
Liptak credits the cohesion among the liberal justices to the leadership of Justice Ginsberg. But I’m also interested in how they managed to pretty consistently pick off one of the conservative justices to vote with them. I was reminded of something Adam Winkler wrote about Elena Kagan almost 2 years ago. He described her as a justice in the mold of Earl Warren.
Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes.
He says this about why Kagan was chosen to be the dean of Harvard’s Law School:
She was seen as someone who could bring together a faculty known for ideological and personal divisions that institutionally hobbled the law school, especially when it came to hiring. As dean from 2003 to 2009, she calmed faculty tensions, launched an aggressive hiring spree that netted 32 new professors, and earned praise from both left and right.
I remember that some liberals opposed Elena Kagan’s nomination. But it strikes me that President Obama would see “bridge-builder” as a necessary role for someone to play on the Supreme Court. It’s exactly how people describe his tenure as President of the Harvard Law Review.
If that’s the case, here’s what we know about the 3 women on the Supreme Court: the senior member is Ruth Bader Ginsberg – the Notorious RBG – tiny woman who throws quite a punch. Then there’s my hero, Sonia Sotomayor, the wise Latina with a heart as big as they come. And finally, there’s Elena Kagan, the bridge-builder. What a team!