Legal News

NYT?s Greenhouse: Where Have all the 5-4 Decisions Gone?

By Dan Slater

In his 2005 confirmation hearing, Chief Justice Roberts pledged to seek consensus on the Supreme Court. But last year, the Court looked anything but unified: Of a total 68 decisions, 24 were 5-4 splits.

So far, however, this year’s been different. With the term half-over, there’s been only one 5-4 split in 35 decisions. So has CJ Roberts been successful?

In today’s NYT, Linda Greenhouse ponders the same question, and throws out some explanations:

Liberals Exacting Modest Concessions: The Court’s decisions to uphold Kentucky’s method of execution by lethal injection and latest federal effort to curb trade in child pornography were both 7 to 2 votes. It’s decision to uphold Indiana’s law requiring photo ID at the polls was a 6-3 vote. Is it liberal capitulation, asks Greenhouse, or liberals using their “limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions”?

To wit: the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

The “Election Effect”: The court’s modulated tone may also stem from the fact that this is an election year, writes Greenhouse. Lee Epstein, a Northwestern law prof, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term. Epstein says justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”

The Lilly Ledbetter Effect: Perhaps, writes Greenhouse, the conservative justices were taken aback by the public response to the Lilly Ledbetter case, a 5-to-4 decision in an employment discrimination case last term that placed a tight time limit on an employee’s ability to file a pay-discrimination claim. The decision led to Congressional hearings during which the court was denounced as out of touch with the reality of women’s working lives. A bill to overturn the decision failed in the Senate, but came close.

The court adopted a notably different tone in an employment discrimination case decided in February. The court voted 7 to 2 to excuse an employee’s failure to file the proper form to initiate an age discrimination case. With only Justices Scalia and Clarence Thomas dissenting, that case, Federal Express Corp. v. Holowecki, produced one of the term’s few liberal victories.

Full post as published by Law Blog - WSJ.com on May 23, 2008 (boomark / email).