Not my favorite topic. The abortion case is highly divisive, entwining legal, religious and political viewpoints. I’ll leave most of the commentary up to the pundits on internet, social media and cable news. who seem able and willing to comment on any topic in a minute. I trust more the printed media, in particular the New York Times and Washington Post. Yes, I am a news snob. I include only two links, one from Wikipedia, and a second from Scotusblog.com . The Supreme Court typically issues their most controversial opinions late in June or July, shortly before adjourning for the summer.
The case before the Supreme Court is Dobbs v. Jackson Women’s Health Organization and at issue is law recently passed in Mississippi which permits abortion up to the first 15 weeks. This is a violation of Roe v. Wade which permits states to outlaw abortions only at the end of the second trimester, approximately 24 weeks.
Roe v. Wade was decided in 1973, with Justice Harry Blackmun, a Republican nominated by Nixon, writing the majority opinion. Prior to this cases, it was hard time getting a case heard in the Supreme Court because by the time because there was no “live” case, as the woman whose rights had been denied, would have already given birth. The Court in 1973 opined that the case could go forward without the requirement of a “live” case.
I have included links on the history of the Roe v. Wade and the oral arguments summary by Amy Howe (Scotusblog). I believe both links provide a neutral stance on the issues.
The liberals on the court, would like to consider Roe v. Wade as settled law, which establishes a precedent for all future cases. It was decided on the Ninth and Fourteenth Amendments to the Constitution.
The conservatives likely consider Roe v. Wade improperly decided on a weak or nonexistent constitutional basis, and so they are merely correcting prior errors of the court. For practical purposes, if Roe v. Wade is overturned, abortion rights will return to the states to decide. What is legal in one state, could result in a felony charges (manslaughter) in another.
“When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the court function and the results in our cases do not suggest otherwise,” said Roberts before hundreds in attendance at the Temple Emanu-El Streicker Center in Manhattan.
Chief Justice John Roberts, Sept 2019.
There are 3 liberal Supreme Court justices: Sotomayor, Kagan and Breyer. As shown above, Justice Breyer is seated to the right of Justice Thomas. Supreme Court Justice Clarence Thomas is a long standing conservative justice. Other conservatives on the bench are: Alito, Gorsuch, Kavanaugh, Barrett, and Roberts. So, the balance of the court is 6-3, in favor of conservatives.
However, the idea that conservatives now control the court has no legs to stand on in the 2020 term. As the Economist article states, as of June 23, of the 50 cases decided in the current term, there have been only four cases of a 6-3 decisions split over ideological lines. There were 24 unanimous decisions.
The 2020 term is coming to an end. I believe there are just 5 more decisions before the court takes their summer break. The more contentious case often come at the end of the term. The HollyFrontier Cheyenne Refining case was decided on June 26, and it clearly supports what Roberts said, that the justices will decide based on the law and precedent, and not which political party supported their nomination. The case was decided 6-3 but the majority opinion was written by Justice Gorsuch, a conservative, and the dissent was written by Justice Barrett, another conservative. Joining Justice Gorsuch was Justice Breyer, a rock solid liberal on the court. Joining Justice Barrett, were liberal judges, Sotomayor and Kagan.
A New Yorker article entitled, “The Supreme Court surprising term” as published yesterday, states, “the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.” I’m not so sure that was the motivation. They recognize the immediate impact their decisions have on every court in the country and this supersedes politics.
The conservatives and liberals have different philosophies on interpreting the law. I don’t think any of the justices has really altered their general philosophy. Conservatives adhere more to the Constitution as written, and are less willing to take an expansive interpretation of the constitution. They can still arrive at the outcome, but with different reasoning. Judgement and and dissents of the court are much more powerful, when supported by both conservatives and liberals.
So, ironically, as our political parties seem to become more polarized, with opposing views on just about every issue, the Supreme Court is finding common ground and this is good. Yes, Republicans nominate conservatives and Democrats nominate liberals. The very good aspect of the approval process, is that we have a Supreme Court, with some of the top legal minds in the country, through their education and experience.
Conservatives and liberal justices joined in the denial of the challenge to Obamacare, probably the case with the greatest immediate impact and highly controversial between Republicans and Democrats. The majority ruled the merits of the case should not be considered, because there was lack of standing, based on no showing of real harm to the States. Justice Alito wrote a strong dissent to the majority.
What keeps the Court out of politics? The Court has nine independent justices, and each gets one vote, including the Chief Justice. In the case of eight justices, the Chief Justice does not break the tie. A tie means the lower court decision holds. So, I believe giving the Chief Justice no special privileges has been one way the court has kept out of partisan politics. The President might call up the Speaker of the House, when the Republicans were in the majority and say he wants certain legislation passed. Doesn’t work at the Supreme Court. Our founding fathers wrote in the Constitution that the Supreme Court judges would have lifetime appointments, so this keeps them out of the political fray.
I think it is also a tribute to John Roberts and other members that has resulted in conservatives agreeing with liberals and vice-versa. Yes, conservatives tend to agree more often with each other than with liberal members. But, this agreement isn’t consistent enough to predict cases.
Which justices cross over and join with the other side? I think this term, the answer is pretty clear. Every single one of them! Breyer joining with Barrett on one case, Sotomayor and Kagan joining with a dissent written by Thomas in another case (TransUnion Credit Case). How nice!
The Supreme Court is not split Republicans verses Democrats. There is however an ideological split, which influences their decisions. This is all highly simplistic, as I don’t want a blog about textualism, or judicial activism ideas. I consider Ginsburg, Breyer, Sotomayor, and Kagan to be in the liberal camp and Thomas, Alito, Roberts, Kennedy and Gorsuch to be in the conservative camp. So, in theory, every decision will be decided by the group of 5 in the conservative camp. Wrong, wrong and wrong!
I’ll start with my conclusion. Liberals tend to stick together more than conservatives, at least in the current term in the Supreme Court, so if the liberals can attract one or more conservatives, then they will prevail. Sometimes, liberals join with conservatives. There are unanimous decisions, where ideological differences are unimportant. The most recent case, the New Jersey State Gambling case, was a 6 to 3 vote, with Kagan, normally on the liberal side, voted with the conservatives.
This is different from politics, where a Republican who supports a Democratic bill, in a close vote, is likely be pressured to change his vote.
I use Scotusblog.com in the current term for my statistics. Here is the agreement of votes from the liberal block, in the range of 96 to 100% agreement.
Ginsburg and Breyer 100%, Ginsberg and Kagan 96%, Ginsberg and Sotomayor 100%, Breyer and Kagan 96%, Breyer and Sotomayor 100%, Sotomayor and Kagan 96%.
The conservatives block of 5 justices, range from 68% to 100% as follows:
Thomas and Alito: 100%, Thomas and Roberts 68%, Thomas and Gorsuch 81%, Alito and Roberts: 75%, Alito and Gorsuch 81%, Alito and Kennedy 86%, Roberts and Gorsuch 85%, Roberts and Kennedy: 89%, Kennedy and Gorsuch 81%.
There was a lot of talk about Kennedy being the swing justice. But, a very good argument can be made that Roberts is also a swing justice. In fact, Roberts has agreed with Ginsburg and Sotomayor the same percentage of the time (68%) as with Thomas. Gorsuch is the new justice, and statistics show he sides with the liberals at times.
There are some important caveats to this. First, this is all cases, and not broken down in ones where there was an ideological difference. I don’t know how many cases were involved in calculating these statistics; it may be quite a small set. Finally, in a number of cases, justices concur in part, but not in all of the decision. The statistics don’t distinguish between partial or full agreement. Both cases are considered agreement.
The Supreme Court has to make judgement on the most difficult cases. It decides each case on its merits, and in relationship to the law. It has been noted that the Supreme Court is producing less opinions in the current term. It may be that Roberts has tried to obtain more of a consensus among the justices, by keeping the opinions more narrowly focused in some of the cases.