Law versus politics on the Supreme Court

Opinion by Thomas Fu
May 1, 2014, 7:31 a.m.

To the extent that the American public thinks about the Supreme Court at all, it only seems to do so in the context of the one or two most divisive (and therefore most mass-media-friendly) cases each year. The cases that make it into the public’s eye tend to be highly controversial, both in society and among the justices, and are often framed in partisan terms, with the media often painting the Court as consisting of a liberal wing (Justices Ginsburg, Breyer, Sotomayor, and Kagan—all Democratic appointees), a conservative wing (Chief Justice Roberts along with Justices Scalia, Thomas, and Alito—all Republican appointees), and Justice Kennedy, who acts as the deciding “swing vote.”

Given this popular characterization of the Court, most people are surprised to learn that the vast majority of the Court’s cases are not decided by a 5-4 vote. Last term, for instance, in which the Court decided a number of contentious cases—including, most notably, those involving the constitutionality of Section 5 of the Voting Rights Act (Shelby County v. Holder), the Defense of Marriage Act (Windsor v. United States), California’s Prop. 8 (Hollingsworth v. Perry) and warrantless DNA searches of arrestees (Maryland v. King)—only 29 percent of cases involved a 5-4 split, while a full 49 percent were decided unanimously.

Perhaps even more surprisingly, when the Court does divide 5-4, it often does so along lines that radically depart from the stereotypical liberal-conservative breakdown. Last week, for instance, the Court handed down two 5-4 decisions (some of the first 5-4 decisions of the term) that departed from the “classic” 5-4 breakdown.

The first, Navarette v. California, involved the question of whether the Fourth Amendment permits a police officer to pull a car over for drunk driving when the officer herself did not observe any suspicious behavior, but only received an uncorroborated anonymous tip that the car was driving erratically. Voting to uphold the stop as constitutional, Justice Breyer broke from the Court’s liberal wing and joined Chief Justice Roberts, Justice Thomas, Justice Kennedy and Justice Alito to form a majority siding with the police. Meanwhile, Justice Scalia penned a fiery dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, in which he accused the Court of “serv[ing] up a freedom-destroying cocktail consisting of two parts patent falsity.”

The day after it handed down Navarette, the Court issued its decision in Paroline v. United States, a case asking how much restitution, if any, federal law requires an individual convicted of child pornography to pay to his victim. Again, the Court split 5-4, and again the lineup departed from the ordinary liberal-conservative divide. Justice Kennedy, in an opinion for a majority consisting of himself, Justice Ginsburg, Justice Breyer, Justice Alito and Justice Kagan, held that a child pornography defendant is required to pay for his proportional share of the harm that the victim suffered as a result of the child pornography. Under Justice Kennedy’s rule, the defendant is required to compensate the victim for somewhere between zero percent and 100 percent of the harm suffered, with the precise amount depending on the extent to which the defendant’s conduct caused the victim’s harm.

The four remaining justices all dissented, but for different reasons: Chief Justice Roberts, joined by Justices Scalia and Thomas, read the federal child pornography statute as not entitling victims to any restitution at all, while Justice Sotomayor read that same law as requiring restitution for all damages suffered by the victim, regardless of whether the child pornography defendant caused that harm.

So what’s going on here? Why is a self-described law-and-order conservative like Justice Scalia siding with criminal defendants while Justice Breyer, a Clinton-appointee often described as a moderate liberal,  votes in favor of expanded crime-fighting power for the police?

While speculating as to why particular justices cast particular votes in particular cases is always a dangerous proposition, the basic answer is that the justices (both “liberal” and “conservative” ones) do more than simply vote their politics. Indeed, the issues which most often split the Court tend not to be hot-button political questions, but rather seemingly esoteric legal ones.

There is a sharp divide in the Court, for instance, on the question of whether the Constitution’s meaning should remain fixed (a position most often associated with Justices Scalia and Thomas) or whether its meaning should change over time (a position that Justices Alito and Breyer, among others, have expressed sympathy with recently). Similarly, a number of justices have staked out divergent positions on whether it is more important to interpret the law to be coherent and consistent (Justices Scalia and Ginsburg, for example) or to account for the law’s practical consequences (Justices Breyer and Kennedy).

With a number of highly contentious constitutional cases yet to be decided this term (e.g., the constitutionality of legislative prayer, abortion clinic buffer zones, cell phone searches and the Affordable Care Act’s contraceptive mandate)—at least a few of which are likely to depart from the “typical” 5-4 split—this distinction between legal and political questions is worth keeping in mind.

Thomas Fu and David Friedman are the managing editors of the Stanford Law Review. Contact them at [email protected] and [email protected].

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