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October 06, 2014

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This CSmonitor piece outlines the speculation about what the SC is thinking

I think the Monitor is mis-reading the tea leaves.

It takes 4 Justices to decide to hear an appeal. Pretty obviously, the Justices who agree with the Appeals Court decisions have no reason to vote to hear it. But could the 4 conservatives insist? Sure. But they didn't.

It might be that they are not sure which way Justice Kennedy would vote. But I suspect that it actually comes down to Chief Justice Roberts -- since there are only 3 others, so they can't force it without him. He really finds himself in a no-win position if the Court hears the appeals.

On one hand, the Court could sustain the various lower court decisions. That would make gay marriage the law of the land nationwide. Not something that Roberts probably desires to see.

But on the other hand, the Court could overturn the lower court decisions. Then what? Then Chief Justice Roberts, a man who cares deeply about his legacy and place in history, knows that his Court would get mentioned in history in the same breath with the Courts which decided Dred Scott or Plessy v Ferguson. Which is definitely not something he would want.

So his best hope is to try to stay out of it. If he gets lucky, none of the remaining Curcuits will decide differently. That way he (and his Court) never has to explicitly take a stand.

I agree with wj that the four liberal justices have no reason to hear the case so long as the various circuits are all deciding in favor of the individuals. Either the circuits will continue that way, so why bother (from a purely legal standpoint), or one will decide the other way and they can then resolve the circuit split.

Assuming that's the case, the remaining non-Kennedys could still vote to take it up. Why not? Could be that they know they'll lose and thus are staying away until they have to decide on it after a potential circuit split. Better to lose later than lose now.

So, could be 8-1 against granting cert, with Kennedy begging for a circuit split so he can write the opinion.

On Roberts, wj says: a man who cares deeply about his legacy and place in history. I keep reading that and wondering what the evidence is for it. If so, why not vote for cert and then change his mind from Windsor? Actually, reading his short dissent from Windsor just now, there's nothing there that would keep him from voting with Kennedy + the Lefties that this kind of sex discrimination by the states is unconstitutional - his dissent focuses on federalism and notes that this focus of the majority (as he characterizes it) could cut the other way in a future case. He also says in his view going any further than that (i.e., talking about non-federalism constitutional issues) is not necessary.

Could be that Roberts comes out that way and is just waiting as long as possible before doing so - thus no reason for him to want to see the case any time soon.

Related to Roberts view of himself, an in-law, who fancies himself a muckety muck in high-level conservative legal circles (for good reason, I guess) mused recently that the better Bush choice for chief justice would have been Ted Olson, since "Ted doesn't care what anyone thinks about him," whereas Roberts does. This was in the context of the ACA decision not marriage, where it seems Olson might have been a second Kennedy. Apparently, however, Olson was "too old."

That's interesting, and certainly makes sense.

If you want to be socially relevant, if you want to have a legacy and a place in history, you have to decide. Either way, you either have a group of reactionary judges too afraid that they won't be supported or you have Roberts worried that they would actually decide the wrong way, and he'd be saddled with it. Either way, it seems pretty spineless

my response crossed with Ugh's, so shouldn't be taken as responding to that. I do think that Roberts is concerned about his place in history, but if you spend all your time worrying about how you are going to look, you probably won't get anything done.

I would object to the use of "decision" to describe what happened here. The Supreme Court didn't decide anything; they just went along with the so far unanimous decisions of the Circuit Courts. The absolute most anyone can claim they did is to put off making a decision until the Circuit Courts have actually split on the issue.

There could be more mundane considerations. There are many many many other cases the court could take up, so if the circuits are merrily lining up the same way, why suck all the air out of the room with cert in one of these seven cases?

Windsor was just decided last year, why wade into it again so soon?

Or, again from a purely legal standpoint, there is no circuit split so no real need to weigh in. If that changes, the court can (and almost certainly will) grant cert.

Of course, there is a bit of a risk if the liberal justices are playing the "no need to decide this until we have to" game. There is a significant chance the Senate will go R in November and any vacancy in the Court could then go unfilled until 2017 (which I think would be unprecedented, but don't count on that stopping the current GOP).

On Lithwick's piece (you're missing the "h" in her first name LJ, BTW), there's a fair bit in there that raises hairs on the back of this lawyer's neck - she's heavy on the political side and the "role" of the Court (or her/some's view of the role) in history/leading/etc. But, that's not, supposedly, what the Court is to be about. The other branches are the "political branches," as Roberts notes in his Windsor dissent.

That leads me to quote (or paraphrase) Professor John C. Yoo again circa May 2000, in that he said he would never want to be a judge, but would be happy to be a SCOTUS Justice. The implication being that they aren't really judges, so perhaps we should get over our view of them as apolitical callers of balls and strikes.

I do wonder what kind of strategy goes on between the justices in these cases. Do Ginsburg, Kagan, Sotomayor and Breyer really sit down and discuss this sort of thing? Actually, I think they might pass memos back and forth.

... perhaps we should get over our view of them as apolitical callers of balls and strikes.

Too late. I, at least, got over that view about 14 years ago.

--TP

I came here to say something very similar to what others have already said...there is no circuit split and there is no 'legal' need for SCOTUS to weight in.

While part of me wishes they would take a stand, so to speak, in general I think SCOTUS really shouldn't be encouraged to, or shamed into, weighing in when there is no split in the lower courts.

They often act as a political branch, much to the consternation of whoever they happen to decide against. And pundits will no doubt rage about 'judicial activism' until the court is 'activist' in the other direction.

On the 'strategic' side, I see some benefits. If they voted to affirm the lower courts (which I think is just, proper, and likely), the right to marry would than be permanently marked as 'introduced by SCOTUS fiat'. It will be a fixture of political debates, and imo it will retard the substantial gains gay rights are making socially.

Society and the lower courts are rapidly shifting on this issue, even in the bible belt:

http://blog.seattlepi.com/seattlepolitics/2014/03/05/sweeping-reversal-in-gay-marriage-attitudes-poll/#16414101=0

"In those 33 states — many in the “Bible Belt” of the Deep South — the Post/ABC poll found support for same-sex marriage at 53 percent with opposition at 40 percent."

It's a dramatic shift from only a few years ago. In short, the longer SCOTUS waits to take up the issue, the less it will be about judicial fiat.

"so perhaps we should get over our view of them as apolitical callers of balls and strikes."

To me, the sequel to that thought (which is not what you said, and I'm not trying to put words in your mouth), is saying we should do our best to stock the court with as many partisans as we can, because if they are going to be a political branch than they might as well be our political branch (for whatever value of 'our' you want). Laws that take years to gain popular support and pass through the other political branches can be passed by 5 justices accountable only to themselves.

The problem I have with that view is it is the fantasy football of democracy. You can root for your side, you feel good when they win and bad when they lose...but you're not playing football, and its not democracy.

thompson, unfortunately exactly that is the reality already. Looking at the last few elections it has become one of the most powerful arguments for turning out the vote, at times even putting the person of the candidate into the shadow. He (no she around) got reduced to be the guy who would pack the court with hacks and otherwise would act merely as the signer of the bills coming out of Congress with no independent action at all. That got openly stated on the GOP side. On the Dem side it was 'we must win at least the presidency or the GOP will pack the courts (and SCOTUS in particular) with hacks that will block anything we could achieve in Congress'.
The courts have become the de facto makers (and, even more, breakers) of policy and the other branches (and their puppet masters) have reacted accordingly.

Thanks for the pointer on Dahlia Lithwick's name. I thought there have been books that have unpacked historic decisions about how justices have cajoled each other, but they have been historical decisions and there was the Woodward and Armstrong book titled _The Brethren_ that had that off the record stuff that Woodward is famous for, but I've gotten very suspicious of that approach because of things like this.

This Economist blog post is quite interesting and suggests that the liberals reasoning is this

A split Supreme Court ruling recognising a constitutional right to marry for gays and lesbians would surely be portrayed by opponents as the case of five liberal activist judges jamming homosexuality down the entire country’s throat. This perception would not serve the cause of gay rights in the short or medium term; indeed, it would embitter and embolden opponents, creating an atmosphere of intolerance in places where public opinion remains dead set against same-sex marriage. How much better to let the state legislatures and federal-appeals courts do that work piecemeal at a local and regional level, without the Supremes having to lift a pen. All this and the added benefit of creating “facts on the ground”—ie, married same-sex couples in dozens of states, which an eventual Supreme Court ruling on the constitutional question would be hard-pressed to ignore.

and then quotes the Atlantic article that says

The four dissenters in United States v. Windsor—the Defense of Marriage Act case—may have looked around the conference table last week and realized they would never get five votes to overturn the lower courts; that is, that Justice Anthony Kennedy was committed to taking his Windsor opinion to its fullest extent. Such an opinion might not only affirm same-sex marriage; it might hold, as some lower courts have held, that sexual orientation is a “heightened scrutiny” classification, like race or sex. All laws that discriminate against gays and lesbians would be in danger then. Chief Justice John Roberts and his allies may hope that every circuit will come to the same decision, so that gay marriage will become the law without a broad Kennedy opinion upholding the rights of gays in other areas.

So you have a situation where both sides see too many downsides in taking a stand.

So you have a situation where both sides see too many downsides in taking a stand.

Just like the other political branches...sigh.

Hartmut:

unfortunately exactly that is the reality already

And an executive with unchecked power to wage war is a reality. And an intelligence apparatus that defies review is a reality. An uncritical and partisan media is a reality.

Many things are part of reality, that doesn't mean it is worthless to advocate against them.

I think your observation about the GOP/Dem dynamic is accurate as well. Its an example of the perpetual excuse for any behavior of a political party: the other side did it first/would do it.

The courts have become the de facto makers (and, even more, breakers) of policy and the other branches (and their puppet masters) have reacted accordingly.

I that is often correct, even if your phrasing is perhaps a little exaggerated. Take the ACA...contentious political debate which rolls right into the really important decision when SCOTUS weighed in. It weakens the authority and the responsibility of the legislature.

And I don't think that is an ideal, or even acceptable situation. Which is why I am saddened by the surge of dismay when SCOTUS actually didn't act as the de facto maker of policy. It's behavior that I think should be encouraged and praised when it occurs.

LJ:

The Economist piece sums up my view on potential to 'embitter and embolden ' opposition.

On NPR this morning there was a relevant story: http://www.npr.org/2014/10/07/354230853/same-sex-marriage-no-longer-the-political-wedge-it-once-was

TL;DL: a number of anti-gay marriage talking heads talked about continuing the fight, etc, and activist judges. Cruz wants a constitutional amendment (good luck with that), etc.

But embattled Scott Walker noted how he personally disagrees with gay marriage, but noted its the law of the land, he would enforce it. and didn't want to talk about it any more. It's a losing wedge issue.

I'm concerned that SCOTUS weighing in would amplify the 'activist judge' argument from the fringe and slow the social movement towards equality.

Thanks for the links LJ.

One of them noted that if the Court did grant review of these cases that it would be another nine months before the Court ruled, keeping anyone in those states from marrying until sometime in June 2015. By denying cert, those folk can marry now (in fact as of 1pm yesterday in Virginia). So there is immediate justice for those people. I suppose the Court could have granted cert and lifted the stay of the lower court decisions - but that would be tantamount to a decision on the merits (i.e., would it really then reverse the lower courts after lifting the stay?).

I'm not sure I agree with this part: Such an opinion might not only affirm same-sex marriage; it might hold, as some lower courts have held, that sexual orientation is a “heightened scrutiny” classification, like race or sex. All laws that discriminate against gays and lesbians would be in danger then.

As I've long argued, the "gay marriage" cases would be much easier for those on the conservative side of things to decide in favor of the individuals if they were framed as being about sex discrimination, not sexual orientation discrimination. I mean, you don't have to prove your homosexuality to marry a person of the same sex - just like you don't have to prove your heterosexuality to marry someone of the opposite sex.

Thus, a decision could be handed down that said "applying the heightened judicial scrutiny to laws that discriminate on the basis of sex, the court finds no government interest that carries the burden to overcome such scrutiny when it grants the benefits of marriage only to opposite sex couples" and then striking down the laws on that basis.

Thus, "gay marriage" is the law of the land, but the question of sexual orientation discrimination is left to another day. If I were CJ Roberts, I think I could sign on to that opinion and be happy. But the litigation and arguments on both sides have gone down a separate path and, it seems to me, it would be hard to decide the current cases without speaking to the larger question of sexual orientation discrimination, although I suppose SCOTUS can decide on whatever basis it would like.

I disagree with the worry over any horrible backlash against the Court and/or gay marriage had the Court taken up one of these cases and decided for the individuals. This situation is just not remotely comparable to Roe.

First, the harm in Roe is specific, demonstrable, and easily understood, not to mention amenable to graphic depiction. The supposed harm in gay marriage is diffuse, hard to demonstrate, and for those reasons not easily understood, or at least not as easily in the case of abortion. The most graphic depiction you're going to get are same sex hugs and kisses between two people wearing nice outfits.

Second, Roe, as modified by Casey, is messy messy jurisprudence. With the trimester framework, and viability, and "undue burden," there was and is plenty of room for states to mess around the edges with various laws, as we continue to see. A gay marriage decision would, in comparison, be simple, straightforward, and not amenable to state meddling - how can you be "sort of" married? I suppose there is the domestic partner option but that can be easily dispensed with.

Finally, the strategy of coming out of the closet will (if it hasn't already) win out. Gay folk are your family, friends, and colleagues, not some unknown, scary, "other." There doesn't appear to be a similar movement on the abortion side, although of course the situations are not the same.

For the outrage side, here is Sen. Ted Cruz's statement. Not how he frames this. As "authoriz[ing] judges to redefine marriage for the Nation."

Also, "It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today."

So simple! I also love this, "This is judicial activism at its worst." By declining to take the case!

As I've long argued, the "gay marriage" cases would be much easier for those on the conservative side of things to decide in favor of the individuals if they were framed as being about sex discrimination, not sexual orientation discrimination.

Maybe. Conservatives I know who are fine with gay marriage are fine with it either because, like a lot of people, over time, what seemed weird/wrong about SSM seems a lot less so, or not wrong at all, or because they realize SSM isn't that big of a deal and it gets in the way of things that are a big deal. For both groups, a subset of conservatism is minding one's own business and telling other adults what they can and cannot do falls in the category of not minding one's own business.

I played golf this weekend with a friend who still leans against SSM, but I can see him wavering even if he can't. He answer, like a lot of elected Republicans, is to treat it like a secondary or tertiary issue and not say anything about it.

We have an openly gay mayor in Houston and two very, very large mega-churches well within city limits. How much whining do you hear from the pulpit? Not a word. She's a good mayor. Competence underscores what is relevant and what is not.

"This is judicial activism at its worst." By declining to take the case!

Cruz knows his audience. his job is to get out there and make with the buzzwords and the wailing; that's what the mouthbreathers want to hear. someone else can mess with logic and whatnot.

cleek - I completely agree. He's done a good job of messaging for those inclined to agree with him - how could it possibly be otherwise! Although he says more about the 14th Amendment than I would expect.

McKinney - I guess I was thinking more of conservative jurists. I don't think there's any way they are going to demote sex discrimination back down to rational basis review, and if that's how it's teed up for "gay marriage," just seems it would be easier for them to go along.

But yes, also easier because "what seemed weird/wrong about SSM seems a lot less so, or not wrong at all, or because they realize SSM isn't that big of a deal," which would go to the government's interest in keeping marriage heterosexual.

I don't think there's any way they are going to demote sex discrimination back down to rational basis review, and if that's how it's teed up for "gay marriage," just seems it would be easier for them to go along.

Ok, I follow. Over time, except for the bitter-enders, it will morph into heightened scrutiny eventually, just like it has morphed into inevitability.

I have to agree with Ugh. At this point, a ruling on gay marriage would be more similar to Loving v Virginia than to Roe v Wade. That is, the Court would be going where most of the country has already gone. Rather than, as with Roe, where the country is headed, but has mostly not yet gone.

That is the real tragedy of Roe. At the time, abortion was slowly but steadily being legalized across the country. (Even the Baptists were on record as being in favor!) But since it hadn't achieved critical mass, the decision becamea flash-point. Think of how much better the world would be for liberals if that rallying cry for the culture wars hadn't happened.

At this point, a ruling on gay marriage would be more similar to Loving v Virginia than to Roe v Wade.

Maybe. Polling is far better, but legalization is far worse (at least my understanding is that interracial marriage was legal throughout the nation, except the south, by the time Loving was decided. Fairly recently, but the laws were falling away at the state level.)

Oddly enough, the situation is almost opposite. There is large public support via polling, but new laws and state constitutional amendments are actively being passed. Unjust laws, but democratically passed. SCOTUS acting would be overturning state laws passed only a few years ago.

It would, I think, make an effective soundbite: An activist SCOTUS running roughshod over a states rights to self determine, etc etc.

On the other hand, declining to review grants immediate rights across multiple states and isolates SCOTUS from a political hotbutton.

Maybe there will be a split and they'll have to resolve next term. But then there will be increased public support, more marriages in more states, and a clear need for SCOTUS to weigh in (a split in the lower courts).

Or maybe all the circuits courts will line up and there will be no need for SCOTUS.

thompson: but new laws and state constitutional amendments are actively being passed. Unjust laws, but democratically passed. SCOTUS acting would be overturning state laws passed only a few years ago.

True, but I don't see any kind of Roe-esque backlash (if that's what we're in fact seeing). In the minds of abortion opponents the issue is murdered babies, more than enough to galvanize opposition. You can waive around graphic photos, protest outside clinics, terrorize young women going into get abortions (or anyone going to the clinic generally).

What's the gay marriage analog of any of that? It's one thing to vote for a state constitutional amendment that's on the ballot and you're there voting anyway. But going out and protesting gay marriage at, what, the county clerk's office? That's a lot of effort.

Not about this fight, but about the behind the stage stuff at the SC

But, as Biskupic's book tells us, with a significant scoop, Sotomayor's passion can be effective too, as it was two years ago when the issue was affirmative action in higher education — the very system that initially boosted her from the tenements of the Bronx to the elite Ivy League, and eventually to the top of the legal profession. The case, which involved the University of Texas affirmative action program, was argued in early October of 2012 but was not decided until late June of 2013. Biskupic reports that it was Sotomayor's scorching dissent that turned the tide.

"She was furious about where the majority of her colleagues were and what they were going to do in terms of rolling back affirmative action. So she writes this dissent, circulated privately, and it gets the attention of her colleagues" who were "skittish" about the case to begin with. Behind the scenes, inside the court, writes Biskupic, tense negotiations ensued for nine months, with individual justices assuming critical roles. "Among them, Sotomayor as agitator, Stephen Breyer as broker and Kennedy as compromiser." In the end, the conservatives backed away; the University of Texas affirmative action policy was allowed to stand, at least for the near future; "and there is no public sign of what Sotomayor had wrought."

I found this piece in politico so persuasive that I've changed my mind.

One Man One Woman!

that Politico piece... first pp ends with:

Secondly, today’s ruling robbed parties and states of their day in court.

actually, the states had their day(s) in court - multiple courts. and they lost, multiple times.

The Politico piece makes Ted Cruz's statement read like Hemingway.

Ugh, did you catch this line in the article you link to:
Having triumphed in many new worlds, winning top honors first from Princeton and then Yale Law School, she is not shy about noting that throughout her academic and professional life, no matter what her achievements, people who did not know her questioned whether she was smart enough. It's a suspicion that she openly suggests stems from her ethnicity, and not from any lack of achievement.

Gosh, what other person do we know of on the national scene who routinely gets accused of having somehow gotten where he is only thanks to affirmative action? (Although I don't recall when affirmative action came into play in Presidential elections. But maybe I just don't appreciate the insidiousness of it all.)

It sounds like the Politico authors want to revisit Marbury v Madison. Good luck with that.

Or can they really be so ignorant as to believe that this decision represents something new?

more than enough to galvanize opposition. [...] What's the gay marriage analog of any of that?

You might be right. Maybe I'm seeing culture warriors where there are none, or very few. I just find SCOTUS to be one of the more polarizing bodies in our government. I think, largely, because bringing a case to SCOTUS is sometimes viewed as a continuation of politics through other means (to paraphrase).

Eh, who knows.

How about this: I predict that if and when SCOTUS rules favorably on the issue, Chief Justice Roberts at least concurs in the result.

How about this: I predict that if and when SCOTUS rules favorably on the issue, Chief Justice Roberts at least concurs in the result.

I'd agree with that and go further. If and when it happens, it will be unanimous or nearly so. I think part of it is waiting for a case where all the justices can agree, even if they agree for different reasons, as outlined in the below link and the links its references.

http://time.com/2941260/supreme-court-partisanship-john-roberts/

"The term that ended on Monday was a reflection of goals that Roberts set during his 2005 confirmation hearings—more unanimous opinions, for example, and a more modest idea of the Supreme Court’s role in society."

This is moderately interesting.

Justice Anthony Kennedy issued an order to halt same-sex marriage in Idaho — and apparently also Nevada — on Wednesday after the 9th Circuit Court of Appeals struck down the states' bans one day earlier.

Although probably nothing as the post notes. The 9th Circuit decision does include a concurrence that bans on same sex marriage are unconstitutional sex discrimination (he noted...).

I have the distinct impression (lawyers please correct me) that granting an emergency stay is unexceptional in instances where the case in question is going to allow something new (and difficult to reverse) to be done, and the issue is not firmly settled law.

And perhaps Justice Kennedy is merely giving himself a day or two to actually read the Appeals Court decision before deciding whether to let it go forward.

wj - not really unusual, just the timing - on Monday multiple cases are turned down and gay marriage may commence, yet on Wednesday Kennedy halts gay marriages in a separate case. Why?

As you say, just likely going through the procedural motions.

[...]
What does this mean? Kennedy’s actions may signal the Court’s interest in eventually hearing this case on appeal. Although the Court did just turn down seven gay marriage petitions originating from five other states, the 9th Circuit’s ruling is notable for subjecting the Idaho and Nevada gay marriage bans to “heightened scrutiny,” one of the more aggressive forms of judicial review. Other federal appellate courts, by contrast, have adopted what’s called rational-basis review, which is the most deferential towards state officials. This methodological split among the federal circuits could prompt the Supreme Court to weigh in on the merits of a gay marriage ban.

Justice Kennedy Temporarily Blocks Pro-Gay Marriage Ruling in Idaho

here is a very good graphic that compares interracial marriage to marriage equality--

http://xkcd.com/1431/

navarro, it does cast an interesting light on the complaints that the courts are unprecedentedly ramming a change down people's throats, doesn't it.

more unanimous opinions, for example, and a more modest idea of the Supreme Court’s role in society."

More unanimous opinions? Ha. Ha.
http://takingnote.blogs.nytimes.com/2012/06/18/five-four/?_php=true&_type=blogs&_r=0

A more modest idea of the role of the court's social role? More Ha Ha.
These are laughable concepts by any measure. The Roberts Court's slim conservato-fascist majority leads the pack when it comes to 5-4 decisions.

They are also willfully immodest. How can one be modest when one revives the dead and buried concept of nullification?

The gang of 5 is lockstep in its reactionary pronouncements.

Just ask the 15th Amendment.

The majority is taking a strategic pass on this one. They have bigger fish to fry.


More unanimous opinions? Ha. Ha.

If your point is that there is more than one metric to judge a court, I'd agree. Some discussion on that point was in the link I provided and indeed, in the link you provided:

"In short, by this particular measure, the current Roberts court is indeed more divided than its predecessors.

But some caveats. First, the Roberts court has been easing up on five-four decisions since its 2006 record, hitting below 20 percent in 2007, 2009 and 2010. [...]

Second, these numbers don’t reflect that even the Roberts court issues more nine-zero decisions than five-four decisions each term, often substantially more. In the [5-4 split] record 2006 term, for instance, when over 33 percent of cases were five-four, 39 percent were unanimous. The following year about 17 percent of opinions split five-four, versus about 30 percent nine-zero."

The gang of 5 is lockstep in its reactionary pronouncements.

"Third, the Roberts court doesn’t always split along partisan lines, with Justice Kennedy playing kingmaker. Chief Justice Roberts wrote today’s dissenting opinion in Salazar v. Ramah Navajo Chapter. He was joined by Justices Ginsburg, Breyer, and Alito."

You provided a good link, with some informative discussion. So, thank you for that.

These are laughable concepts by any measure.

There are, no doubt, many ways to measure modesty. I just can't think of any objective ones. If you had some suggestions, perhaps that would be the start to a interesting discussion on modesty of supreme courts throughout history.

Who knows, I may end up agreeing with you. Perhaps the Roberts court really is the most divisive, immodest court in history. I can't say I feel strongly about it either way.

I think the view of the Roberts Court as being divisive pivots on whether you're talking about all cases it hears as a whole, or just the publicly divisive ones. On the former, sure you get what might seem as "strange" voting patterns, but it's really just differing opinions about an ambiguous statute.

For example, the description from SCOTUS blog on two oral arguments from yesterday: In the former case, the Justices are considering whether employees must be paid for time spent in security screenings; in the latter, the question is whether federal evidentiary rules allow a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

I suppose you can tease out conservative vs. liberal positions on those two cases (especially the former), but they're likely to produce a mixed voting lineup "across ideological lines."

But on gay marriage, or the ACA, or Hobby Lobby, or Lilly Ledbetter, you see 5-4 splits where it's easy to see if, e.g., Alito was replaced with an Obama appointed Justice, the case would come out the other way.

This is especially infuriating when the winning sides seems to rely upon some especially dubious approaches/frames/reasoning to get to the policy result "their side" wants, as I would argue is the case in many of the above.

Overall, I'm surprised that there are so many 9-0 decisions. If a case is contentious/ambiguous enough to reach the Supreme Court, how is it you can't get at least one vote for your side?

totally OT, but... is there something wrong with Dr S's post above? i've left two comments there that have failed to show up. but here, my wisdom slides effortlessly into public view.

Perhaps the Roberts court really is the most divisive, immodest court in history.

I'm having trouble imagining anyone holding this opinion who personally remembers the Warren Court of the 1950s and 1960s. Certainly liberals' views of the Roberts Court today pale by comparison with conservatives' views of the Warren Court back then.

I think the view of the Roberts Court as being divisive pivots on whether you're talking about all cases it hears as a whole, or just the publicly divisive ones.

I'd agree.

But on gay marriage, or the ACA, or Hobby Lobby, or Lilly Ledbetter, you see 5-4 splits where it's easy to see if, e.g., Alito was replaced with an Obama appointed Justice, the case would come out the other way.

And that's what bothers me about SCOTUS. For anything high profile, they are basically the continuation of politics by other means. Decisions such as not accepting any of the appeals work to correct that, or at least to not further it. IMHO, of course.

And yeah, the end result is exactly as you describe. The law gets discarded for policy endpoints. Which is unfortunate, because we already have two other branches of government that seem happy to discard law for policy endpoints.

Overall, I'm surprised that there are so many 9-0 decisions.

My understanding, perhaps wrong, is that the justices do talk to each other. I think on non-emotionally charged issues, reaching consensus is probably not an insurmountable challenge. I'd also assume (again, perhaps wrongly) that they typically strive for consensus.

thompson: reaching consensus is probably not an insurmountable challenge. I'd also assume (again, perhaps wrongly) that they typically strive for consensus.

That's fair. I guess if you don't feel strongly one way or the other, or maybe even if you do and it's a place where it's important to be clear and the other justices disagree, then a 9-0 decision makes sense. But then I would expect a paucity of 8-1 or 7-2 decisions, and even rarer concurring opinions (and perhaps that's the case).

And that's what bothers me about SCOTUS. For anything high profile, they are basically the continuation of politics by other means. ... The law gets discarded for policy endpoints.

But how would you fix this? I mean, I suppose we can ask SCOTUS justices to explain their philosophy of constitutional interpretation, statutory construction, and rules of evidence and procedure during confirmation, as well as their view of the role of the Court in society (and the balls and strikes BS shouldn't cut it) and, should they ever decide contrary to such things to reach a particular result, remove them from the bench.

But even that would be messy - and subject to the political branches to boot.

But then I would expect a paucity of 8-1 or 7-2 decisions, and even rarer concurring opinions

It is odd, I suppose. Clicking through some of these stats pretty much shows 9-0's are the most common, followed by 5-4:

http://www.scotusblog.com/reference/stat-pack/

And I don't really have an answer for you. I'm somebody who values consensus building, so to me it just makes sense the justices would want to show a united front whenever possible. But beyond a few snippets I've seen in the news, I don't think I can make that argument that that is the driving factor.

Maybe its that 90% of the time, they just allow themselves to be convinced by whoever cares the most. I don't know.

But how would you fix this?

Not easily. I view it as a symptom of the larger polarization issues in the country. Fractured, polarized politics leads to ideological justices, imo. Because that's what people talk about during confirmations: how they will decide on whatever high-profile cases might be coming down the pipe (and nominees artfully avoid discussing any hypothetical cases). It's not surprising that the nominees have ideological positions on upcoming cases...I think that's a large factor in their selection.

But, no, I can't think of any procedural methods for stopping it. I think the answer has to be cultural. Politicians have to stop treating SCOTUS as a political hail mary play, and voters have to stop supporting it. You suggested focusing more on legal philosophy during confirmation, and I think that would help.

But that would involve senators asking those questions rather than soundbites, and a public that was interested in legal philosophy.

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