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Lee Capristo
Director of Publications
Email: lwcapristo@smcm.edu
Anne Arundel 100

Election's Impact on the Supreme Court
by Susan Grogan, Professor of Political Science

Earlier this summer, commentators weighed in on the Supreme Court’s 2007 term. There was hardly consensus in these observations, as opposed to the previous year when almost all Court watchers saw the justices divided 4 – 1 – 4, with Justice Anthony Kennedy tipping the balance between a conservative bloc and a liberal cohort, usually with a conservative outcome. This past year, we saw fewer 5-4 decisions, more variety in the make-up of majority and minority coalitions in those cases, and Justice Kennedy himself sometimes in the minority. In addition, the Court split 50-50 on the ideological direction of its 5-4 cases. However, taking into account the ages of three of the four most liberal justices, it is likely that the president elected in November will have the opportunity to make two or three Supreme Court appointments with the potential effect of solidifying a conservative Court or maintaining a somewhat balanced, if hard to define, Court.Supreme Court

Yes, I hedged here, noting the merely potential effect of new appointments. Why? First, presidents don’t always get what they want in their judicial appointments. Second, those 5-4 decisions that dominate in discussions of Supreme Court politics give a false picture of the Court and its decision-making processes.

Any president will want to appoint justices who share the president’s political philosophies. Moreover, although the judicial nominees must be confirmed by the Senate, presidents usually get their way. Yet, history – as well as the current Supreme Court – provides examples of justices who were surprises, if not disappointments, to the presidents who appointed them.

Justice David Souter, assumed at the time of his appointment by President George H.W. Bush to be a restrained jurist and conservative Republican, is now identified as one of the liberal four. Justice Kennedy was intended by Ronald Reagan to be a regular in the conservative bloc, not the ideology-busting tie-breaker he has become. The most liberal justice on today’s bench by most accounts? Republican John Paul Stevens, appointed by Gerald Ford in 1975.

A few years earlier, when Harry Blackmun was appointed by Richard Nixon, it was assumed he would vote in lock-step with his friend and fellow Minnesotan, Chief Justice Warren Burger. While his early Court behavior suggested that there was truth to this “Minnesota Twins” assumption, the legacy of Blackmun is found in his opinions in abortion cases, beginning with Roe v. Wade, and his late-blooming, but increasingly voiced, opposition to capital punishment. A final 20th century example: Asked if he had made any mistakes as president, Dwight D. Eisenhower reportedly answered, “Two, and they’re both sitting on the Supreme Court,” referring to Chief Justice Earl Warren and Justice Potter Stewart who had both proved to be more liberal jurists than Ike had anticipated.

Presidential appointments are important, but not infallible, mechanisms for shaping the direction of the Supreme Court. Presidents cannot read their nominees’ minds or souls. And it is not just new justices who influence the Court, the Court in return influences them. The Supreme Court is not like any other court in the nation, as justices themselves have frequently observed. Institutional tradition, collegiality, the pace of work, and the nature of the cases all play a role in molding the justices. The qualities of this institution bring us back to my second point: that a focus only on conflict-laden, 5-4 cases, misrepresents what happens at the Court.

This past year, more cases were decided unanimously than were decided by 5-4 votes—or by any other combination of justices. This was also so the preceding year, as it was the year before that. In the past three terms, 40% of the cases were decided unanimously, versus 22% decided by margins of one vote. Cases decided with only one or two dissenters constitute another 25% of the total.

Can we dismiss the unanimous, or nearly unanimous, cases as unimportant, no-brainers? They were certainly important to the litigants who pursued the cases through a full set of state courts or two levels of lower federal courts prior to the Supreme Court. They were also important enough to the justices to be selected for decision in the first place.

Annually, the Court is asked to review some 10,000 cases from lower courts. Of these, the Court selects, hears arguments on, and decides only a small fraction – about 75 per term for the past three years. At least four justices must agree that a case requires consideration by the high court, indicating that there are significant legal matters to sort out. So it is that even within this court of “Supreme Conflict” – as a recent book labels it – troublesome legal issues are often decided with no or little disagreement. The justices find common ground more often than we might think.

If there is consensus on so many of its cases, does this mean that individual justices appointed to the Court do not matter? No. Votes still matter, and in a close case, five justices will trump four justices. But the behavior of any particular justice, especially after sitting on the Court for a number of years, is hard to predict. Intelligence and thoughtfulness might seem to be the primary characteristics sought in a nominee to the Supreme Court. This is something presidents must remember in making appointments to the Court and voters should recall when selecting a president to make those appointments.