The pieces are in place. With Justice Scalia’s death the liberals on the Court (both ideologically speaking and by virtue of their appointments by Democratic Presidents) are matched evenly with the Court’s conservatives for the first time in almost half a century. The last time a majority of Justices appointed by democrats sat on the Court was in 1968 with Justices Fortas, Black, Marshall, White, and Douglas. Add to that the liberally inclined Justice Warren and the liberal leaning Justice Brennan and you had quite a leftist Court with the exception of Justice Potter Stewart. By the 1969 Term, Fortas and Warren left the Court and the thrust to the right under Chief Justice Burger was underway (click here for a neat interactive timeline of the Justices ).
Numerous articles have examined the Court’s conservativism in the years subsequent to the Warren Court (e.g. these pieces in the New York Times: piece 1, piece 2). Now with an even number of republican and democrat appointees and the possibility of a Democratic President appointing a fifth Justice in the mix, there is potential for a sea change in the preferences of the majority of Supreme Court Justices. With this newfound power comes the possibility of limiting conservative rulings from the past several decades and focusing on issues that have not been examined during the first decade of the Roberts Court.
Since this is the most ideologically evenly matched Court in quite a long time might a change already be underway? The four democrat appointees can now stymie any attempt at conservative rulings forcing the more conservative Justices to acquiesce to their positions or simply leave lower court rulings untarnished for a later (and potentially more liberal) Court to examine.
Now how would it look if the four democrat appointees were to “flex” their judicial muscles? Perhaps they have already been doing so. In the first two written opinions after the death of Justice Scalia, two democrat appointees dissented in each case. In Gobeille these were Justices Sotomayor and Ginsburg and in Lockhart these were Justices Kagan and Breyer. Then something interesting happened. In what appeared as a discovery of the potential to control the direction of the Court’s rulings, the democrat appointees began voting together as a bloc. In the next three cases – Americold Realty, Sturgeon v. Frost, and Tyson Foods, none of the four democrat appointees dissented (Thomas and Alito both dissented in Tyson Foods). Then Justice Kagan filed a dissenting opinion in Luis v. United States (the other three democrat appointees were in the majority).
Between the Americold decision on March 17 and the decisions released on April 20th, Justice Kagan’s was the only dissent from any of the democrat appointees. This is in contrast to one dissent from Justice Roberts, one from Kennedy, three from Thomas, and two from Alito over the same time span. On April 20th Justice Sotomayor halted this progression by joining Justice Roberts’ dissent in the Bank Markazi case. Below is a table of the Justices’ votes since Justice Scalia passed away.
Note: maj=majority; dis=dissent. The highlighted cases are the string ten consecutive cases with only one total dissent from a democratic appointee.
Between (and including) Americold and Bank Markazi the Court issued ten written opinions with only one total dissent from a liberal appointee (Justice Kagan in Luis v. United States). From this can we infer that the more liberal Supreme Court Justices are coordinating in a way that hearkens back to the Warren Court years?
These ten decisions between Americold and Bank Markazi mark a different course for the term. In the previous twelve decisions there were four dissenting votes from the democrat appointees and this pace surely slowed after Justice Scalia’s death.
On the other hand though, this is not the first time that we have seen a pattern of a low number of dissents among the democrat appointees in consecutive cases. During the 2014 Term there was actually a longer string of decisions with one or fewer dissents among the democrat appointees (encompassing thirteen decisions).
Over the course of the years since Justice Roberts was appointed Chief Justice, there were actually five periods where democrat appointees dissented one time or fewer over the course of more than ten consecutively released decisions. These include the thirteen decisions in 2014, a sequence of twelve decisions in the 2013 Term without a dissent from a democrat appointee as well as a sequence of thirteen decisions in the 2013 Term with only one dissent from a democrat appointee, a sequence of fifteen decisions in the 2012 Term with only one dissent from a democrat appointee, and a sequence of twelve decisions in the 2010 Term with only one dissent from a democrat appointee.
If we include the liberal leaning Justices Stevens and Souter along with democrat appointees, then the longest such streak was seventeen decisions during the 2005 Term with only one dissent from a liberal Justice.
This recent sequence of decisions with few dissents from democratic appointed Justices without a doubt marks a change in the tenor of the Court and there is potential for a much more aggressive liberal thrust from the remaining Justices that might increase depending on the next confirmed Justice. Through this point in the 2015 Term, however, the Justices appointed by Democratic Presidents have not displayed a unique propensity to vote as a bloc that differentiates this Court composition from recent previous Courts. If a Democratic Presidential nominee is the next confirmed Justice, however, we very well might see a shift towards a liberal majority that favors liberal decisions, which has not been the face of the Court in almost fifty years.
On Twitter: @AdamSFeldman
Below are the consecutive case sequences from OT 2005 through OT 2014 with one or fewer dissents from a democratic appointee that are greater in length than the set from OT 2015:
ARIZONA STATE LEGISLATURE v. ARIZONA INDEPENDENT REDISTRICTING DISTRICT
OBERGEFELL v. HODGES
JOHNSON v. UNITED STATES
KING v. BURWELL
TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT
HORNE v. DEPARTMENT OF AGRICULTURE
KINGSLEY v. HENDRICKSON
KIMBLE v. MARVEL ENTERPRISES, INC.
CITY OF LOS ANGELES, CALIFORNIA v. PATEL
MCFADDEN v. UNITED STATES
BRUMFIELD v. CAIN
WALKER v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS
REED v. TOWN OF GILBERT
NLRB v. NOEL CANNING
MCCULLEN v. COAKLEY
AMERICAN BROADCASTING COS. v. AEREO, INC.
RILEY v. CALIFORNIA
FIFTH THIRD BANCORP v. DUDENHOEFFER
HALLIBURTON CO. v. ERICA P. JOHN FUND, INC.
LOUGHRIN v. UNITED STATES
UTIL. AIR REGULATORY GROUP v. EPA
LANE v. FRANKS
UNITED STATES v. CLARKE
ALICE CORP. PTY. LTD. v. CLS BANK INT’L
SUSAN B. ANTHONY LIST v. DRIEHAUS
BURRAGE v. UNITED STATES
SANDIFER v. UNITED STATES STEEL CORP.
AIR WISCONSIN AIRLINES CORP. v. HOEPER
MEDTRONIC, INC. v. MIROWSKI FAMILY VENTURES, LLC
RAY HALUCH GRAVEL CO. v. CENT. PENSION FUND OF INT’L UNION
MISS. EX REL. HOOD v. AU OPTRONICS CORP.
DAIMLERCHRYSLER AG v. BAUMAN
HEIMESHOFF v. HARTFORD LIFE & ACCIDENT INS. CO.
KANSAS v. CHEEVER
SPRINT COMMUNICATIONS, INC. v. JACOBS
ATLANTIC MARINE CONSTR. CO. v. UNITED STATES DIST. COURT FOR the Western District of Texas
UNITED STATES v. WOODS
BURT v. TITLOW
JACQUELINE HILLMAN v. JUDY A. MARETTA
GREG MCQUIGGIN, WARDEN v. FLOYD PERKINS
LINDA METRISH, WARDEN v. BURT LANCASTER
PPL CORPORATION AND SUBSIDIARIES v. COMMISSIONER
SEBELIUS V. CLOER
CITY OF ARLINGTON, TEXAS V. FCC
DAN’S CITY USED CARS, INC V. PELKEY
VERNON HUGH BOWMAN v. MONSANTO COMPANY et al.
RANDY CURTIS BULLOCK v. BANKCHAMPAIGN, N. A.
MARK J. MCBURNEY, et al. v. NATHANIEL L. YOUNG
ADRIAN MONCRIEFFE v. ERIC H. HOLDER
MISSOURI, v. G. MCNEELY
KIOBEL v. ROYAL DUTCH PETROLEUM CO.
US AIRWAYS, INC. v. McCutchen
ASTRA USA, INC., et al., v. SANTA CLARA COUNTY
KEVIN KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTIC
MATRIXX INITIATIVES, INC., et al. v. JAMES SIRACUSANO
HENRY W. SKINNER, PETITIONER v. LYNN SWITZER
ASHBEL T. WALL, II, DIRECTOR V. KHOLI
GLEN SCOTT MILNER v. DEPARTMENT OF THE NAVY
ALBERT SNYDER v. FRED W. PHELPS, SR., et al.
JASON PEPPER v. UNITED STATES
VINCENT E. STAUB v. PROCTOR HOSPITAL
FEDERAL COMMUNICATIONS COMMISSION, et al., v. AT&T
DORETHA H. HENDERSON V. SHINSEKI
MICHIGAN v. RICHARD PERRY BRYANT
GARY KENT JONES v. LINDA K. FLOWERS, et al.
NORTHERN INSURANCE COMPANY OF NEW YORK v. CHATHAM COUNTY
PATRICK DAY v. JAMES R. MCDONOUGH
GEORGIA v. SCOTT FITZ RANDOLPH
MERRILL LYNCH, PIERCE, FENNER & SMITH INC. v. SHADI DABIT
Rumsfeld v. Forum for Academic & Institutional Rights
ILLINOIS TOOL WORKS INC., et al. v. INDEPENDENT INK, INC.
TEXACO INC. v. FOUAD N. DAGHER, et al.
JOSEPH SCHEIDLER, et al. v. NATIONAL ORGANIZATION FOR WOMEN
JENIFER ARBAUGH v. Y & H CORPORATION, DBA THE MOONLIGHT CAFÉ
OREGON v. RANDY LEE GUZEK
BARBARA DOLAN v. UNITED STATES POSTAL SERVICE et al.
DOMINO’S PIZZA, INC., et al. v. JOHN MCDONALD
BUCKEYE CHECK CASHING, INC. v. JOHN CARDEGNA et al.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
CENTRAL VIRGINIA COMMUNITY COLLEGE, et al. v. BERNARD KATZ
UNITHERM FOOD SYSTEMS, INC. v. SWIFT-ECKRICH, INC.