Over at Slate ‘s “Breakfast Table,” Walter Dellinger and Jack Goldsmith have credited the composition of the docket for explaining why, for a time this term, the court looked like it had gone moderate on us and forgotten its 5-4 habits. (Give Tom Goldstein points for predicting much of this back in September.) Now that the term is over, of course, we know that it ended in familiar 5-4 fashion in the big-bang cases (Gitmo, child rape, guns). We know from the stat masters at Scotusblog that 17 percent of cases split 5-4 this year—a lot less than last year, which is the outlier at 33 percent, and between somewhat and a bit less than the previous several terms. After Scotusblog factored in the rarity of 9-0 decisions, it called this term “the most divided in recent history.”
That may not be how most of us will remember it, but in the NYT , Linda Greenhouse makes the same point in singling out as the term’s main theme the enduring influence of Justice Kennedy. Jeffrey Rosen, on the other hand, in TNR sees the term as a lesson in division minimized and writes another love letter to Chief Justice John Roberts in which he calls my much more skeptical judgment of Roberts “premature.” I do give Roberts props for a vote this term—he was in the majority in the 7-2 decision that found a right to sue for retaliation in the Reconstruction-era law written to give former slaves equal rights to make contracts. In that case, Roberts went with precedent over textualist upheaval. But one vote doesn’t a uniter make; in the biggest rulings of the term, Roberts was on his usual side of the ideological split. My feeling about the chief justice continues to be that he’s powerful precisely because he’s smoother than Scalia and Thomas. He doesn’t alienate his colleagues with inflammatory rhetoric like Scalia or bulldoze precedent like Scalia and Thomas. He is more careful. That means he’ll need more time to bring about major shifts in the law, on some fronts, but his votes continue to suggest that he will move the court to the right when he can. I still don’t see the case for supporting Roberts’ nomination and opposing Alito’s, or simply for heralding Roberts as a bullet that liberals dodged, as Rosen puts it. He sees Roberts’ narrow opinion writing as “the only thing standing between them and a Court eager to roll back progressive reforms.” Isn’t there more evidence, again this term, for that thing being Justice Kennedy?