If You Can’t Beat ‘Em Block ‘Em: A Preface to a New Post-Scalia Court Strategy?


(images via supremecourt.gov)

In the biggest cases this Supreme Court Term there was one common thread – the four Justices appointed by Democratic Presidents either voted together for the winning position or (likely) voted together to cause a 4-4 split (this was a potential strategy I discussed earlier).  The numbers on the Court set up this scenario.  Without Justice Scalia, the Justices are split between four appointed by Democrats and four appointed by Republicans.  Historically there have been several Justices that are appointed by one party and vote in the opposing ideologically direction (Justice Stevens is a recent example), but the Justices on this Court are fairly consistent.  With numbers leaning in their favor for the first time in decades, the Court’s left wing used the math to their advantage.

Although it is difficult to pinpoint the most important cases of the year (I tried to do in a somewhat reasonable manner in a prior post), cases that garnered a lot of discussion leading up to the decisions included Evenwel, Friedrichs, Fisher, Zubik, United States v. Texas, McDonnell, and Whole Women’s HealthFriedrichs, Zubik, and US v. Texas all ended with 4-4 votes.  This is not an optimal result for any of the Justices, but if we assume Justice Scalia would have voted along with the four Republican nominated Justices in these three cases, then this is a best-possible outcome for the other four Justices (even though some of these indecisions have garnered pretty scathing criticism).

Fisher is the one surprising outlier from this set because Justice Kagan was recused and so only seven Justices voted in the case (interesting factoid unique to this Term: Fisher and RJR Nabisco were the only cases decided by one vote: 4-3 splits. Per Kimberly Robinson, even with Scalia on the Court early on there were no 5-4’s).  Justices Alito, Roberts, and Thomas’ positions were fairly predictable as were those of Justices Sotomayor, Breyer, and Ginsburg.  Many (strongly) hypothesized Kennedy would vote the other way (see for example ).  As this was the only case since Justice Scalia passed away where the Democrat appointees were a minority this was supposed to be a sure fire loss for affirmative action proponents.  As it turns out Kennedy flipped his vote in the opposing direction of his past votes against affirmative action programs in cases like Grutter v. Bollinger and wrote the opinion upholding the University of Texas program.

Possibly the biggest surprise for the liberal side was Justice Breyer voting alongside Justices Roberts, Kennedy, Thomas, and Alito in Utah v. Strieff leading to a loosening of 4th amendment standards for searches and seizures during unconstitutional traffic stops. This was one of the two cases this Term where three of the Democrat appointed Justices voted in dissent, and which included onr of the more memorable dissents in recent years from Justice Sotomayor (the other case with three of these Justices dissenting was RJR Nabisco). Whether this decisions speaks to a lack of cohesion among the Democrat appointees or a difference of opinion in this one area only time will tell.

Part of the reason for the success of Justices Sotomayor, Ginsburg, Breyer, and Kagan in big cases this year has to do with decision timing.  The Court typically saves its biggest decisions for the end of the Term and this Term was no different.  Even the earlier decisions listed above (Friedrichs and Evenwel) though were handed down after Justice Scalia’s death.

When we look the last several Terms, there were multiple important decisions that hinged on five to four votes with the blocs voting along ideological lines and where Justices Ginsburg, Breyer, Kagan, and Sotomayor were in the minority.  Last Term these included the pro-death penalty decision of Glossip v. Gross and a ruling against the EPA in Michigan v. EPA.  In the 2013 Term these included Zubik’s predecessor case, Burwell v. Hobby Lobby, the First Amendment case of Town of Greece v. Galloway, and the campaign contribution case of McCutcheon v. Federal Election Commission.  In the 2012 Term there were Shelby County v. Holder striking down parts of the Voting Rights Act and Clapper v. Amnesty International where the Court ruled that reporters and lawyers could not challenge government surveillance programs.  The list could continue ad nauseum, but the point is that there was a sense of something different this Term.

Whether this trend continues is dependent on the next confirmed Justice.  If the Justice is Garland or another nominee from a Democratic President we may see more of this which may also lead to Justice Kennedy losing his post as swing Justice.  If a Republican President nominates the next Justice then in all likelihood there will be a return to business as usual prior to Justice Scalia’s death (albeit with less scathing dissents).  In either case there will be many more contentious five to four decisions with partisan overtones.  The main question that remains is where the pendulum will swing.

On Twitter: @AdamSFeldman

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