First, Dahlia and Walter, let me say how tickled I am to be joining you in this conversation, after years of eavesdropping on it as a reader. I feel that I’m stepping through the looking glass into a world where I can say what I really think! And, just as an aside, I hope that Judge Sotomayor’s ability to say what she thinks didn’t end with her nomination to the Supreme Court. Rather, I hope she takes a cue from the amazing interview that Justice Ginsburg gave to Joan Biskupic last month in USA Today. In that interview, Justice Ginsburg spoke candidly about her reaction to the Redding case that Walter mentioned—the strip-search of the 13-year-old girl. Noting that her male colleagues had seemed to make light of the incident during oral argument, Justice Ginsburg told Joan Biskupic: “Maybe a 13-year-old boy in a locker room doesn’t have that same feeling about his body. But a girl who’s just at the age where she is developing, whether she has developed a lot … or … has not developed at all (might be) embarrassed about that.” Justice Ginsburg also observed that “there are perceptions that we have because we are women” and that these different perceptions can sometimes lead to different outcomes. Justice Ginsburg also complained about another case that was pending at the time of the interview, AT&T Corp. v. Hulteen, a case about the lasting effects of long-ago and now-illegal job discrimination against pregnant workers. It was apparent that she had lost the argument and was steamed about her colleagues’ failure to understand, as she was to put it two weeks later in her dissenting opinion, that “certain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” Only Justice Breyer joined her dissent from the majority opinion by Justice Souter. Justice Ginsburg’s candor both on and off the bench is not only highly refreshing, but enhances public understanding of the court.
Walter, let me accept your invitation by offering some observations about the term so far. Two things jump out from even a casual look at the raw numbers. One is how extremely polarized the court is now: With 65 decisions so far, 18 have been decided by 5-4 votes, and of those 18, 15 have followed the pattern of the same four on one side (Scalia, Thomas, Roberts, Alito) and the same four on the other side (Stevens, Souter, Ginsburg, Breyer), with Justice Kennedy in the middle. These 5-4 cases cover the full range of the court’s docket, from criminal law to administrative law to military law to the meaning of constitutional due process. It’s hard to look down the list of 5-4s without wondering whether psychology rather than ideology might provide a better explanation for this behavior.
The second observation to jump out of the numbers, of course, is Justice Kennedy’s extraordinary role. He dissented in only one of the 5-4s ( Arizona v. Gant). Of the 15 that fell into the usual pattern, he voted with the conservative side of the court 10 times and with the more liberal side five times. The court’s shift to the right—due in part but, of course, not completely to Justice Kennedy’s preferences—is best illustrated, I think, by a count of the number of dissenting votes that each justice has cast so far. These are the dissenting votes on the conservative side: Roberts 10, Thomas 10, Alito 11, Scalia 12. On the more liberal side: Breyer 16, Ginsburg 20, Souter 21, Stevens 24. So the total number of dissenting votes so far among the four conservatives is 43. Among the four liberals, it is 81. Justice Kennedy, by the way, has cast two dissenting votes during the entire term thus far. By definition, of course, the Supreme Court always has what political scientists call a median justice. But I wonder whether the situation has ever been quite this extreme or whether you find it as breathtaking as I do.
Sometime during the week, I’d like to revisit opinions that did not get a great deal of attention but offer us quite a bit of insight into the Roberts court as it concludes its fourth term. But for now, we’d better rest up for the excitement to come this morning.