Compromise At the Court Veils Its Rifts

Two very different group portraits of the Supreme Court emerged this term, one familiar and one unexpected.

The familiar was on display Monday in two 5-to-4 decisions that were split by angry divisions and seemed to advance a conservative agenda. But the more finely drawn portrait takes account of the 67 decisions in argued cases this term. The court was unanimous about two-thirds of the time, and those cases revealed signs of compromise and restraint, which many Supreme Court specialists said was a testament to the leadership of Chief Justice John G. Roberts Jr., 59.

“The chief has done a remarkable job this term navigating divisions and dodging the most controversial of issues,” said Lisa S. Blatt, a lawyer with Arnold & Porter who argues frequently before the court.

Chief Justice Roberts, who completed his ninth term, does not get his way by backslapping or horse-trading, but by writing savvy opinions, making strategic opinion assignments to the other justices, and sometimes working to protect the Supreme Court from accusations that it is a political institution.

Chief Justice Roberts’s handiwork was apparent this term in major rulings on abortion protests and cellphone searches, both unanimous decisions. His majority opinion striking down buffer zones around Massachusetts abortion clinics was much narrower than his earlier First Amendment jurisprudence would have suggested, narrow enough to attract the votes of all four liberal justices. And he wrote a muscular opinion for a unanimous court requiring the police to get warrants before they search the cellphones of people they arrest.

All of the justices are sensitive to the accusation that they are motivated by politics. The current set of nine justices is, for the first time in history, firmly divided along partisan lines, with all of the Republican appointees more conservative than all of the Democratic ones. Their efforts to find common ground may have been partly an attempt to counter the charge that they are, in Justice Stephen G. Breyer’s words, “nine junior varsity politicians” motivated by partisan agendas better left to elected officials.

But the number of unanimous decisions — a record for the Roberts court and the highest percentage since at least 1953 — masked some powerful disagreements, as the justices often agreed only on the bottom line, as was true in the abortion protest and recess appointment cases.

What matters most in Supreme Court decisions is what legal principle commanded a majority, not which side won. Lower courts will apply those principles, and the divisions about the reasoning supporting decisions can be vital. They mattered so much to Justice Antonin Scalia that he all but created a new judicial genre — he wrote three furious concurrences.

The Roberts court’s conservative majority has not retreated from several of its core concerns. It remains skeptical of campaign finance regulations, efforts to drive religion from public life and race-conscious decision-making by the government. It remains solicitous of corporate rights and of efforts to curb union power.
Continue reading the main story

When the chief justice was in the majority in such cases, most decided by narrow margins, another side of him emerged. In all of them, he wrote or joined opinions that claimed to be modest extensions of existing law but may well portend wrenching change.

But the number of 5-to-4 splits dropped, to just 10. Of those, six featured the classic alignments, with Justice Anthony M. Kennedy joining either the court’s four more liberal members or its four more conservative ones. He leaned right two-thirds of the time.

But in a great many cases the justices found ways to agree. This was the fourth term together for the nine current justices. Its newest members, Justices Sonia Sotomayor and Elena Kagan, have grown increasingly comfortable in their roles, and all of the justices seemed, mostly, eager to find common ground with their colleagues.

It did not hurt that the term lacked huge and profoundly divisive cases like those that ended the last two terms.

More From The New York Times: