Five To-Four Supreme Court Decisions and the Politicization of a Majority of One

The perception is strong that Supreme Court cases decided by a five-to-four vote, especially controversial decisions striking down federal or state laws, destabilize the Supreme Court. With a decision resulting from a majority of one, the Court veers from being perceived as an august and neutral body to one operating within the coarse arbitrariness of issue politics. This appearance of creeping illegitimacy, particularly in an era of political polarity, is damaging to an institution that is supposed to serve as a check on the capriciousness of the political system. Supreme Court decisions, even those that are five-to-four, are supposed to be based on stare decisis, meaning the legal directive to follow precedent, and not politics. If judicial decision-making is tantamount to politics, based on personal ideology and subjectivity, it loses its mantle as an objective science applied by neutral judges. Keeping law and politics separate has been critical to the legitimacy of unelected judges interpreting law and the rule of law. The thesis of this paper is that while the division between law and politics appears to be crumbling, especially with the advent of seemingly inexorable controversial five-to-four decisions publicized on the Internet, blogs and the 24/7 news cycle, the legitimacy of the judicial branch should survive and flourish. While the local culture surrounding the Court and the public’s perception of its decisions are under a brighter spotlight than ever, respect for stare decisis and fealty to its interpretive role will maintain confidence in its resolution of disputes. Episodic criticism should not spell doom. A framework for understanding the current turbulence surrounding five-to-four Court decisions is intersubjectivity, which suggests that ideas evolve through consensus and community over time, rather than through individuals in isolation of each other. Social relations, through communication, shape language, culture and meaning - even within the realm of science and judicial decision-making. This idea has contributed to the relocation of the Supreme Court as a partisan entity in America’s conscience and, more importantly, as this paper argues, has provoked its current instability. With regard to a post-modernist intersubjective critique, the Court’s intersubjectivity is troublesome, especially in controversial five-to-four decisions. Decision-making is not a momentary snapshot and abstract process that is applied mechanistically, but rather one that changes over time and circumstances. The boundaries are constantly shifting. Application of judgment depends on human beings, who are inherently biased and committed to particular interests. These commitments can warp the consistent appearance of rationality. As this paper argues, the post-modernist intersubjective view of Court decisions is not the real problem, though. The real danger is a by-product of the intersubjective approach, the belief that Court members are not actually listening to each other or considering the facts of a case; that cases are pre-judged by an ossified, inflexible jurisprudence. This inflexibility has been promoted by partisan polarity. The partisans aim in effect to draw the Supreme Court into the realm of politics. As one partisan argued, “it is not just enough to appoint somebody who we know to have the right philosophy – you have to appoint somebody who has shown, either as a judge or perhaps in some other setting, that they will stick with that philosophy even when there’s political pressure to do otherwise.” One manifestation of this perception is the view that the Court is in danger of becoming the “Anthony Kennedy” court, dominated by five-to-four decisions controlled by Justice Kennedy’s swing vote. This idea, that Justice Kennedy’s jurisprudence is fluid, has gained traction over the past several years. For example, the noted constitutional law scholar and advocate, Dean Erwin Chemerinsky, has stated: Certainly from the perspective of lawyers who write briefs to the Justices and stand before them, there is often a sense of arguing to an audience of one. I filed a brief last term and I will tell you in all honesty, my brief was a shameless attempt to pander to Justice Kennedy. If I could have, I would have put Anthony Kennedy’s picture on the front of my brief. My brief was not unique among those in this case; this case was not unique among those on the docket. Everyone knows, even the Justices know, it is the Anthony Kennedy court. This conceptualization is of considerable import and has some basis in fact. For example, of the sixteen cases decided by five-to-four votes in the 2009-2010 term, ten included Justice Kennedy in the majority. In the same term, for example, Justice Kennedy was in the majority of 94 percent of the cases decided by the Court, tied for the most cases with Chief Justice Roberts. The idea further embodies the belief that the members of the Supreme Court, with the exception of Justice Kennedy, are not sufficiently open-minded in making decisions based on the facts and precedent of the case, but instead have broader policy viewpoints that are strong enough to influence their vote in a certain manner no matter what is presented to them in briefs and oral argument. While there have been justices known to have unbending views since the origins of the Supreme Court, this intransigence now has spread to the public at large. The contagion, as it were, involves the belief that Supreme Court justices are predictable in their rulings, but that they are predictable not because of cases and their facts, but because of their ideology that purportedly guides their rulings. With the recent health care decision, National Federation of Independent Business v. Sebelius, penned by Chief Justice Roberts, those fears might be now seen as overstated or less imminent as the justices pulled back from the precipice in perhaps another “switch in time that saved nine.” What is not overstated, however, is the dramatic rise in the relevance of a perceived intersubjectivity of the Court and its socio-political surroundings, perhaps associated with the controversial and divided nature of some of its important cases. Specifically, there is a growing perception that Supreme Court decision-making – except perhaps for Justice Kennedy – is triangulated, guided by ideology and policy agendas, as well as the objective interpretation of the law. The paper ultimately suggests that while a political critique of an intersubjective Court likely will persist as long as there are five-to-four decisions in controversial cases, the Court’s legitimacy is not the issue. Instead, the real issue is the changing relationship of the public to the Court. What is required, consequently, is a more nuanced and sophisticated understanding of the Supreme Court decision-making process within the Court and between the Court and the country, not any wholesale changes in the Court and its process. Along these lines, the paper offers ideas how courts in the future can promote judicial neutrality and the corresponding integrity of the rule of law. After this introduction, the paper provides a brief overview of the history of five-to-four Supreme Court decisions, stare decisis, and intersubjectivity. The paper then describes how significant events have changed the perception of judicial decision-making from one that was essentially immutable to one that is mostly intersubjective. The paper then explores what can be done in the future to maintain the law and politics divide.