Friday, May 23, 2008

Greenhouse on 5-4 Rulings   [Ed Whelan]

Linda Greenhouse has an interesting but curious article addressing the question, “Where have all the 5-to-4 decisions gone” this term?  I’m inclined to agree with Jonathan Adler’s explanation on the Volokh Conspiracy, the essence of which is that it’s the previous Court term, not this term, that is the outlier.

 

It won’t surprise readers that Greenhouse claims—or, rather, asserts—that “the conservative bloc [is] so clearly in control”; that she finds occasion to couple the cheap shot that Judge Posner took at Chief Justice Roberts in his new book (see my point 2 here) with the too sweeping declaration that Roberts “undoubtedly admires” Posner; and that she implicitly credits Justice Ginsburg’s political grandstanding on last year’s Ledbetter case—grandstanding that Greenhouse herself celebrated—as possibly affecting the Court’s opinions this term in employment-discrimination cases.

 

What I find curious about the article—and implausible (except as an insincere tactic on the part of justices)—is Greenhouse’s suggestion that the supposedly “beleaguered liberal bloc” may have “capitulat[ed].”*  Why, when the Court is so divided, when Justice Kennedy’s vote is still available to them on so many matters, and when there’s a real prospect of a Democratic president making the next five or six appointments, would the liberal judicial activists be giving up?

 

In any event, no one should be lulled into imagining that the cause of judicial restraint is on the verge of enduring victory at the Supreme Court.  As Stuart Taylor has outlined, Supreme Court appointments by a President Obama (or Clinton) could well lead to a rash of liberal judicial activism on a broad range of matters—same-sex marriage, taxpayer-funded abortions, cloning, the death penalty, barring school-choice plans that include religious schools, and more.

 

* More precisely, Greenhouse says that it “would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up,” but she then refers to “simple liberal capitulation,” together with “liberals using their limited leverage,” to explain a possible “bit of movement on both sides.”  So I read her to mean that “simple liberal capitulation” may well be one factor in explaining the Court’s term but that it would be “too simplistic” to regard that as the only factor.

05/23 12:50 PMShare