The Incredible Polarization and Politicization of the Supreme Court

John Roberts said he wanted a less polarized court. But the ACA ruling is just the latest in a string of 5-4 decisions on contentious issues, and the problem is getting worse.

David Paul Kuhn

It still came down to one vote.

Had Chief Justice John Roberts sided with his fellow conservatives, as he often does, the definitive legislation of Barack Obama's presidency, progressives' century-long fight for universal health care, would have been thrown out. We are inured to this irony: Many of the Court's rulings that have the greatest influence on American life are increasingly decided by the narrowest possible margin.

It wasn't always this way. From 1801 to 1940, less than 2 percent of the Supreme Court's total rulings were resolved by 5-to-4 decisions. Since then, more than 16 percent of the Court's rulings have been decided by "minimum-winning coalitions." In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

Scholars consider these narrow decisions the most political. Research indicates that 5-to-4 rulings are the most likely to be overturned by later Courts. They carry the same legal authority as more unanimous opinions -- but not the same moral authority. In this vein, the one branch of government designed to be above partisanship echoes the rise in hyperpartisanship seen throughout Washington.

The Roberts Court has decided more cases by a 5-to-4 ruling (about 21.5 percent) than any Court before it, though only by a narrow margin. The previous Court, led by William Rehnquist, decided 20.5 percent of its cases by this minimum coalition. That rate, however, represents roughly twice the share of 5-to-4 rulings in the Stone Court, during World War II. And the Stone Court had more than three times the rate of 5-to-4 decisions of any Court prior.

Roberts noticed the trend early in his term. "I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions," Roberts told The New Republic's Jeffrey Rosen in 2006. "I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn't, it's going to lose its credibility and legitimacy as an institution."

That worry may have shaped Roberts' health-care ruling. The ruling will likely temper, for now, charges that the Court has become a predictably political institution. Thursday's decision marked an unusual respite from this predictably ideological Court. Anthony Kennedy is the traditional swing vote. But Kennedy sided with three more conservative members on Thursday. In the minority opinion, he wrote that the law is "invalid in its entirety." No Supreme Court had struck down presidential legislation this significant since the mid 1930s. So it was Roberts, the conservative chief justice who Senator Obama voted against, who saved, for now, the signature law of Obama's presidency. It was a strikingly non-ideological moment for ideological Washington.

Yet concerns about the Court's apolitical credibility are hardly alleviated. At least two-thirds of the 5-4 rulings during the Roberts Court have split along ideological lines. Roberts has agreed with the three most conservative justices -- Samuel Alito, Clarence Thomas and Antonin Scalia -- in at least eight in 10 non-unanimous rulings, according to calculations by SCOTUSblog.

The health-care ruling will likely temper, for now, charges that the Court has become a predictably political institution. Yet concerns about its apolitical credibility are hardly alleviated.

Roberts has also presided over the two most polarized Court years in American history. In 2006 and 2008, about one in three rulings were decided by a 5-to-4 vote. In the last three years, the Roberts Court decided slightly less than a fifth of its cases by a one-vote majority. Notably, that's still a few percentage points above the share of 5-to-4 rulings during Burger and Vinson Courts. The Supreme Court will consider controversial laws next term, including the use of affirmative action. If past is prologue, major rulings will remain politicized.

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David Paul Kuhn is the Chief Political Correspondent for RealClearPolitics and the author of The Neglected Voter: White Men and the Democratic Dilemma.

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