The Supreme Court is back in session. Last term, the Court dealt with several high-profile cases regarding issues spanning voting rights to campaign finance disclosures. This term will be no less exciting or contentious. The Court will be hearing landmark cases regarding the death penalty and abortion. Regarding the latter, the Court has been asked to overrule the landmark case Roe v. Wade, the most famous abortion case in U.S. history. Needless to say, both sides of the political aisle will evince their greatest passions regardless of the outcome. To prepare for this storm, I think it is imperative that we take time in the current calm to prepare ourselves for when the storm arrives; we must rethink and evaluate our perceptions of the Court and its proper place in our democracy.
Unanimity Still Reigns
After President Trump appointed Justice Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg, many political observers warned that the balance of the Court would shift drastically to the right. After all, the Court had been composed of five justices appointed by Republican presidents and four justices appointed by Democratic presidents. With the appointment of Justice Barrett, the composition would now be 6-3. Thus, the Court will be even more conseravtive.
When the media only gives attention to cases decided 5-4, or 6-3, and portrays cases as being decided based on politics, it makes sense that casual followers believe the Court is a political institution. However, this is simply a misconception framed by the media. The reality is much more complex. Contrary to the conventional wisdom, each term the majority or plurality of cases are decided unanimously. This past term was no exception: 43% of cases were decided unanimously, an increase from the previous term when 36% of all decisions were unanimous.
To be sure, there are cases decided 5-4 and 6-3. However, these cases do not reflect a rightward shift. In this past term, the Court heard 67 cases. Eight of these cases were decided by a margin of 5-4 and 16 were decided by a margin of 6-3, comprising a total of 12% and 24%, respectively. Of the cases decided 5-4, four of them consisted of Republican-appointed justices forming the majority, three of them consisted of Democratic-appointed justices forming the majority and one had a mixed composition. Of the 6-3 decisions, 10 of them were decided with Republican-appointed justices comprising the six, while the other six cases had a mixed composition. Taken together, there were a total of 14 cases decided by a majority of Republican-appointed justices. By comparison, in the term before Barrett’s appointment, the Court heard 61 cases in which 10 of them were decided by 5-4 margins with Republican-appointed justices forming the majority. Mathematically, 10 out of 61 is about 16%, while 14 out of 67 is about 21%. While the “partisan” decisions are a clamorous minority, unanimous decisions still reign as the silent majority.
Philosophy Not Politics
Just because cases are decided by close margins does not mean that they are decided according to politics. Each justice has a judicial philosophy through which they interpret the law. Sometimes, the different philosophies lead judges to different conclusions. As Justice Sonia Sotomayor explained in an interview with CNN: “Is it partisan, or is it because, as I believe, we approach judicial decision-making in different ways?”
Take for example Justices Antonin Scalia and Stephen Breyer who vigourosly clashed regarding whether the death penalty violated the Eighth Amendment’s Cruel and Unusual Punishments Clause. Their conclusions did not differ because of their policy preferences, but because they espoused different judicial philosophies. Scalia was an originalist who sought to interpret the Constitution according to its meaning at the time it was adopted. According to Scalia, the death penalty was given for every felony when the Eighth Amendment was ratified, and therefore it is constitutional. Furthermore, the death penalty is referenced in the Constitution in the Fifth Amendment, which mentions “capital … crime” along with the provision — which also appears in the Fourteenth Amendment — that no person be deprived of “life … without due process of law.” On the other hand, Breyer is a pragmatist who considers contemporary definitions and factors beyond the text. These factors include purpose, consequence and statistics. In a dissenting opinion in Glossip v. Gross, Breyer listed four reasons why the death penalty is unconstitutional — the first three demonstrating cruelty, and the final one demonstrating unusualness.
One might disagree with Breyer or think Scalia is dead wrong. The point is that these vastly different conclusions were reached through complex legal reasoning which stems from different judicial philosophies, not personal politics.
For that matter, even justices with the same jurisprudence reach different conclusions. Scalia and fellow originalist Clarence Thomas were often in agreement during their time together on the bench, but they still had their disagreements. In McIntyre v. Ohio Elections Commission, the Supreme Court held that an Ohio law prohibiting anonymous campaign literature violated the First Amendment. Thomas concurred in judgement, finding that the original meaning of the First Amendment protects anonymous speech. As an example, he pointed to the Federalist Papers, written by some of the founders, which were published under the pseudonym “Publius.” Conversely, Scalia dissented, noting that for over a century every state had such a law with no objection. Therefore, he rejected the challenge, declining to say that every state had been wrong that whole time.
The fact that the two originalists came to different conclusions should not come as a surprise. Free minds, even with the same approach, will not always find the same conclusion.
Judges Do Not Vote
Another misconception surrounding the judiciary is that judges “vote” for an outcome, or cast the “deciding vote” in a controversial case. However, we must realize that judges do not “vote” on anything – they rule or decide. Voting is the job of the legislature. A senator or a representative casts a vote on a policy or nominee. There need not be a particular reason for why the legislator voted the way they did. For all we know, the particular legislator could have thrown a dart on the wall to decide how to cast the vote. However, judges must rule in accordance with the law, even if they dislike the outcome. The ruling must be grounded in objective reasoning, unlike a legislator who can vote for or against a particular policy for any reason under the sun. This might sound like semantics, but it is a vital part of understanding the judiciary. The word “vote” implies that the judge was free to proceed however he or she pleased, but that is not how judging works. When deciding cases, judges are looking for the correct way to apply the law objectively, not giving the most expedient or popular answer to the question at hand.
The Supreme Court has been placed at the forefront of the current political climate. Though the Court usually enjoys high approval ratings, its latest rating of 40% is a new low. Unfortunately, that low approval stems from misapprehensions about the Court. Rethinking our perceptions of the Court will be indispensable as people across the country wait to see how it rules in several upcoming contentious cases. When those cases are decided —regardless of the outcome — we must remember that the justices were not driven by partisanship, but by a good faith effort to uphold the Constitution.
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Photo Caption: The Supreme Court building