The New Divisions in the U.S. Supreme Court

The justices this year seemed to be less likely to vote along traditional partisan lines, but bitter battles over philosophical ideals in recent decisions could be a sign of bigger wars to come next fall.

At this time last year, the Supreme Court seemed to me a mirror of America, hopelessly polarized along party lines. High-profile decisions in campaign finance, contraceptive coverage and public-employee unions had divided the Court into red and blue wings. It was the 10th term of Chief Justice John Roberts, I wrote, and “his quest for a non-partisan Court seems in retrospect like the impossible dream.”
A year later, the situation is subtly different. The justices this term did not buy the world a Coke and keep it company; they divided, but divided on different lines. The Court this term showed different caucuses: a hard-right bloc (Justices Antonin Scalia, Clarence Thomas, and Samuel Alito), a conservative Republican bloc (Roberts and Justice Anthony Kennedy), and a moderate-to-liberal bloc (Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor). They disagreed on philosophy, not party, and individual justices felt much freer to cross lines.
The 5-4 liberal / conservative split persists: It showed up in Michigan v. Environmental Protection Agency, which examined cost calculations under the Clean Air Act, and Glossip v. Gross, where the majority rejected a challenge to Oklahoma’s lethal-injection procedure. But more interesting are the cases where the lines were scrambled.
Kennedy’s vote gave 5-4 victories to the liberals in Alabama Legislative Black Caucus v. Alabama, which examined the impact of race on redistricting in state legislatures, and Texas Department of Housing and Community Affairs v. Inclusive Communities Project, which upheld disparate-impact claims under the Fair Housing Act. In Arizona Legislature v. Independent Redistricting Commission, Kennedy’s vote saved an anti-gerrymandering initiative in the most partisan case of the term. Not a shock; the bull elk of the Court often bucks the conservative line. More surprisingly, Roberts crossed over in, of all things, a 5-4 campaign-finance case, Williams-Yulee v. Florida State Bar, to block judicial candidate campaign fund solicitation.
Most surprisingly of all, though, Clarence Thomas suddenly stepped out. In Zivotofsky v. Kerry, the Jerusalem passport case, he partially joined the four liberals and Kennedy to support the administration. Then, in a kind of unicorn sighting, he provided a fifth “liberal” vote in Walker v. Sons of Confederate Veterans to allow Texas to prohibit Confederate flag license plates.
Kennedy then crossed to make five in Obergefell v. Hodges, striking down same-sex marriage bans while Roberts stayed with the conservatives.
It’s oh-so-tempting to conclude that the Court moved to the center; but I have my doubts. First is that this year the cases moved to the right. At least four of the big cases—Black Caucus, Arizona Legislature, Texas Department of Housing, and King v. Burwell—represented far-right attempts to use the Court to win long-standing policy goals. Not content with the Court’s steady rightward march, movement conservatives sought to force the pace. As Ian Millhiser recently observed, these losses—particularly in the nakedly partisan ACA case—may betray judicial impatience with outside efforts to politicize the Court. If so, it was a long time coming: Last term the Court showed no such reluctance in Hobby Lobby and Harris v. Quinn, a case on public-employee unions, to march with the armies of the right.  
And the string of liberal “victories” represents disasters averted, not new frontiers discovered. The liberal wing might have felt like the cabin boy for the Dread Pirate Roberts, who ended each day with a shout of “Good night, Westley, I’ll most likely kill you in the morning!” Let’s not forget that, in King v. Burwell, old-line Republicans Roberts and Kennedy saved what is, in historical fact, an old-style, market-oriented Republican-style program, hatched by the Heritage Foundation and put into effect first by Massachusetts Governor Mitt Romney.
It is tempting to discuss the Roberts Court as if it were a conscious entity, slowly moderating its view of the world. But it’s not: It is a nine-person committee in which any one member can often change a key result. The transcendence-and-fulfillment Kennedy of Obergefell voted for Confederate flag license plates, judicial campaign-fund solicitation, and lethal injection; the “moderate” Roberts was aggressively conservative on same-sex marriage and redistricting. Big results in both cases, but no outbreak of centrist unity.
But if the Court was not united, it did seem, for most of the term, to be more relaxed. The Justices usually seemed to like each other. Only in the last days of the term, with the results in health-care subsidies, same-sex marriage, redistricting, and lethal injection, did the scorpions begin stinging each other.
Among those stings, this term saw a marked decline in the quality of that old press favorite, the vicious Scalia dissent. The vitriol level was the same, but the content was oddly jejune. The King v. Burwell dissent, in my judgment, is the single most persuasive brief anyone involved in the case ever wrote—on behalf of the government. With a straight face, Scalia insisted that the ACA’s required online calculators, outreach efforts, and required reports in federal-exchange states were deliberately designed to calculate $0 in subsidies; remind curious taxpayers that $0 meant $0; and reassure the federal government that $0 had been given. Read that way, the ACA was the statutory equivalent of the White Queen in Through the Looking-Glass, who promised “jam tomorrow and jam yesterday, but never jam today.”
The Obergefell dissent—which should have been Scalia’s star turn—explicitly sniffed at the mere merits of the majority opinion (“it is not of special importance to me what the law says about marriage”) because it was too busy ridiculing Kennedy for his “mummeries and straining-to-be-memorable passages.” Not since he taunted Harry Blackmun with the imminence of death in Planned Parenthood v. Casey has Scalia let fly with such pure, personal, and utterly non-legal spite. His final improvised oral “dissent” from Breyer’s dissent in the lethal injection case was simply, as Dahlia Lithwick pointed out, bizarre.
Roberts, too, did not do his best work in the final days. A number of readers questioned my estimate of his Obergefell dissent as “civil.” It seemed civil, but probably only in relation to Scalia’s. Roberts did discuss the merits and critique the majority’s reasoning rather than its prose style; but the Chief, like any mortal, can neglect to use the “delete” button. In his last paragraph, he becomes the evil fairy who tries to spoil the wedding feast by tossing a poisoned apple among the gifts: “Celebrate the achievement of a desired goal ,” he told America’s gay couples, “but do not celebrate the Constitution. It had nothing to do with it.” It was an uncharacteristic performance—not simply sloppy, but rude.  
Roberts’s trademark style is a kind of tight-lipped politesse. He often reminds me of the headwaiter at a fancy nightclub where rival gangs mix and sometimes rumble. His mask slips occasionally at the mention of a federal bureaucrat or a racial preference, but for much of the term, he raised the tone of the entire Court.
Politeness will be tested in the fall. Already the Court has loaded the upcoming term with divisive social-issue cases—affirmative action and, almost certainly, abortion and the contraceptive mandate—and high-profile partisan disputes—congressional representation, and, as of Tuesday, public-employee unions again. All these will be decided as the presidential election nears. If, as I suspect, the “moderate” drift is an artifact and not a trend, we will see a return to red-and-blue warfare on the first Monday in October.