The Polarization of the Supreme Court

On the eve of Elena Kagan’s expected confirmation to the Supreme Court, we are delighted to share with our readers the following piece from David Kuhn, the Chief Political Correspondent for RealClearPolitics.

We have become accustomed to “minimum winning coalitions” in recent decades. But throughout the 19th century, a one-vote majority decided only 1 percent of cases on average. Between 1900 and 1950, that average rose to 4 percent. Since 1951, the average rate is 17 percent.

One-vote majority rulings carry the same legal weight as all majority opinions. Yet they lack the symbolic power of decisions by a more united court. Experts consider these 5-to-4 decisions to be more expressly political than others, representing a threat to the court’s moral authority.

In effect, that means the rise in hyper-partisanship in recent decades–visible from Congress to cable television–extends to the one branch designed to be above partisan politics.

Elena Kagan’s confirmation hearings this week served as a fresh reminder of that fact. Kagan spoke of the court in idealized tones. She venerated the high court’s “evenhandedness and impartiality.” But the perception of the high court, at least within the political class, is increasingly the opposite. South Carolina Republican Sen. Lindsey Graham dispensed with the illusion Wednesday. “It is okay, as an advocate, to have an agenda,” Graham said. “I think Alito and Roberts had an agenda.”

That’s not the impression Roberts hoped to convey in 2005. “I have no agenda,” Roberts said during his confirmation hearing. A judge’s job, he explained, “is to call balls and strikes, and not to pitch or bat.” But under Roberts, the high court has continued to resemble a contest between two fiercely divided teams.

The 5-to-4 blocks are more likely to be “rigid” and “politically ordered,” where “liberals line up with liberals and conservatives line up with conservatives,” said Stefanie Lindquist, a law professor at the University of Texas at Austin and an expert in judicial behavior.

The high court has struggled to appear less political since the 2000 Bush v. Gore decision. Until the Roberts Court, the most divisive year in the high court’s history was 2000 (fully 30 percent of rulings were 5-to-4 decisions).

The Roberts Court set new records in both the 2006 and 2008 terms; about one in three decisions were by one-vote majorities those terms. The trend lessened with the recently completed 2009 term, to 18 percent, slightly above the 2007 rate. (See related chart for more details on the study.)

Until World War II, the average number of one-vote majority decisions never exceeded 4 percent under any chief justice. That rate rose as the court increasingly took up the nation’s most divisive social issues, from civil rights to abortion. The Stone Court, which began in 1941, averaged 11 percent. The rate continued to climb for a period, only to diminish with the Warren Court. By 1969, the year the Burger Court began, 18 percent of rulings were decided by one-vote majorities.

“The court reflects the country, and after World War II the court became deeply divided socially,” said University of Oklahoma constitutional law professor Joseph Thai, who clerked for John Paul Stevens in 2000.

The Roberts Court has been defined by these divisions despite having less strong-liberal voices on its bench, compared to more recent high courts. “The court’s deep polarization today is not between the left and the right, but right and middle left,” as Thai put it.

Conservative appellate judge Richard Posner, along with his University of Chicago law school colleague William Landes, underscored this point in a 2009 study. They ranked all 43 Supreme Court justices from 1937 to 2006 by ideology. None of the current liberal judges ranked among the five most liberal members of the court. Only Ruth Bader Ginsburg ranked among the top ten most liberal justices. By comparison, four of the five most conservative judges are currently on the court. Anthony Kennedy, traditionally considered the swing vote on today’s court, was ranked as the tenth most conservative judge.

The same study found that ideology also “matters more in the Supreme Court than in the court of appeals.” In other words, the nations highest court is more political than courts below it.

Kagan is unlikely to change the broad makeup of the court. She will–all sides expect her to be confirmed–replace Stevens, a liberal. But if she proves more liberal than Stevens, that could lead to even more 5-to-4 decisions. The Posner study found that the greater the ideological range on the high court, from right to left, the greater the number of cases decided by one vote.

The Roberts Court has relied on 5-to-4 majorities to pass many of its headline decisions: from this weeks ruling that the Second Amendment guarantees an individual’s right to gun ownership to the Lilly Ledbetter case, limiting an employee’s ability to file a pay discrimination claim, to the Citizens United decision, which allowed unlimited corporate and union spending in elections.

The strong-conservative coalition has tilted most landmark rulings to conservative’s favor in recent years. Precisely for this reason, the rising rate of fragile high court decisions should especially concern conservatives. Studies show that 5-to-4 decisions are the most likely rulings to be overturned by later Supreme Courts.

But the deeper issue transcends any one case or court. The “supreme” authority of the high court rests on its legitimacy. The more absent consensus is from the high court, the more diminished its legitimacy and the more each decision will come to be viewed through a political lens.

David Paul Kuhn is the Chief Political Correspondent for RealClearPolitics and the author of “The Neglected Voter.” This column was first published at RealClearPolitics.