With eight Justices voting on the majority of cases this Term, who are known to often split their votes along ideological lines, there were and are bound to be several unique repercussions. The Justices had and have the option of evenly splitting their votes and leaving lower court opinions as they stand. They also can seek out points of consensus that they have lacked in the past to overcome ideological differences and come to concrete decisions. We have seen both. This post takes a look at some of the interesting and unique voting coalitions this Term.
Before jumping into the coalitions though, a bit of explanation for why the Justices might prefer to make conclusive judgments notwithstanding differences in their views. First they decided to grant cert in these cases for a reason. At least three Justices felt that there was something wrong with the lower court decision (or decisions, conflicts, etc.) as it stood. At the point of granting cert and not finding a reason to DIG (dismiss as improvidently granted) the case, the Court may appear to fail in its duty to resolve important questions of law if they evenly divide in such instances. Along similar lines, the second point is that the Court may lose institutional standing and legitimacy in the eyes of the public from such rulings (see this earlier post for a similar argument). Even with the cases the Court failed to decide on this Term, the Justices have a clear incentive not to evenly divide.
This incentive may be one of the forces that has led to unique voting coalitions between Justices that have bridged the ideological spectrum. As I will point out though, as unique as these coalitions seem, there is some history to support each of them. First for clarification, the really unique coalitions are not in the majorities, but in the dissents. We are much more apt to see Justices who often disagree group in the same majority coalition than we are to see them in the same dissent. This has to do with the additional subjectivity that comes with joining a dissenting coalition (the active decision to separate oneself from the Court’s majority) and the decision to stand together in a minority grouping with a Justice (or Justices) that may predominately sit on the other end of the ideological spectrum.
Before the death of Justice Scalia, there was one such dissent grouping this Term. This coalition was made up of Justices Thomas, Sotomayor, and Ginsburg in DirecTV v. Imburgia. To be fair, there were two separate dissents in this case: one from Justice Thomas and one from Justice Ginsburg where Justice Sotomayor Joined. After Scalia’s death there been four unique dissenting coalitions; specifically ones we have never seen before.
To begin in Luis v. United States Justices Kennedy, Alito, and Kagan all dissented from the majority opinion. While this is a unique trio, like in the DirecTV case, the dissenting opinions were actually split between one written by Kennedy and joined by Alito and one written by Kagan.
Now for one of the really intriguing combinations. In Bank Markazi v. Peterson, Justice Roberts wrote a dissenting opinion which Justice Sotomayor joined. This is a first for this combination that do not often align in their perspectives. In this case we do not see simultaneous dissents, but a single dissent where the two Justices agree in the rationale.
We see the favor repaid in Ocasio v. United States where Justices Roberts, Thomas, and Sotomayor dissented. Justice Thomas wrote one dissent, while Justice Sotomayor wrote a dissenting opinion that Chief Justice Roberts joined. For two Justices that so infrequently agree in dissent, these two cases present a possibility for a burgeoning voting relationship.
Perhaps equally surprising is the dissenting coalition in Luna Torres v. Lynch, a case dealing with the removal of an immigrant due to an aggravated felony, where Justice Sotomayor wrote a dissent joined by both Justice Thomas and Breyer. Also worth note in this case – Justice Kagan, Justice Sotomayor’s often ally on the Court, wrote the majority opinion.
Each of the groups of dissenting votes mentioned above are unique to the Roberts Court in that these are the only times those Justices dissented in cases with no other Justices included in the dissents. The fact that four of the five groupings occurred after Scalia’s death is interesting although not surprising given the precarious and convoluted positions of the Justices on this eight-member Court. These groupings are not as idiosyncratic as they might seem at first blush though.
For instance, while Justices Thomas and Sotomayor dissented three times in the same cases so far this Term, they have done so four times in prior terms. The parallel dissents of Kagan and Alito/Kennedy from Luis was a unique occurrence and one of the rare times Justices Kagan and Alito have both dissented at the same time (this was the first time this trio all dissented at the same time). The only other time we’ve seen Justice Kagan and Justice Alito dissent at the same time is when Justices Kagan and Ginsburg joined Justices Alito’s dissenting opinion in Elgin v. Department of the Treasury (2012).
The Sotomayor/Roberts combination is also quite unique. The only times prior to this Term where Justices Sotomayor and Roberts joined in dissent was in the 2010 case of South Carolina v. North Carolina on original jurisdiction and in Kaley v. United States where Justices Sotomayor and Breyer joined the Chief Justice’s dissent. In South Carolina v. North Carolina, Justices Thomas and Ginsburg joined in Justice Roberts opinion concurring and dissenting in part as well as Justice Sotomayor.
As I previously mentioned, the Justice Sotomayor/Thomas dissenting combination is not quite as unique although these are the first times they dissented in the same cases with only either Justice Breyer or Chief Justice Roberts. Justices Thomas and Sotomayor were both also in the dissent in South Carolina v. North Carolina. They were also both in the dissent in Hollingsworth v. Perry, Paroline v. United States, and in Scialabba v. Cuellar de Osorio where Justice Thomas joined in Justice Sotomayor’s dissent.
Although it becomes difficult to differentiate odd, ideologically diverse coalitions in some cases, I count 22 instances of such intriguing dissenting coalitions since all of the current Justices joined the Court (after Justice Kagan was confirmed). Five of these instances occurred so far this Term. Four of these took place after Justice Scalia died. As long as this Court stays at eight members we are likely to see more of these odd groups of Justices in dissent, especially if the Justices seek to make decisions rather than send cases back down to the lower courts without any Supreme Court decisions. This does not mean that tension among the Justices does not remain (see for instance Justice Sotomayor’s blistering dissent today to Justice Thomas’ majority opinion in Utah v. Strieff), only that they may seek to compromise when they are not steadfast in their views.
On Twitter: @AdamSFeldman