The Supreme Court’s major 5–4 decisions usually come down at the end of the term in June, when the justices are desperate to wrap up work and retreat to an island fortress. Much of the court’s docket is less ideologically charged, and typically the justices spend months handing down straightforward, unanimous rulings as they wrestle with the more complex cases. This term is different. The justices have now handed down three 5–4 rulings split along ideological lines, the highest rate of split decisions at this point in the term since 2010. And this bitter divide only stands to get worse over the next four months, as the court hears major disputes over abortion, presidential power, immigration, religious liberty, and the Electoral College. The current term is shaping up to be one of the most momentous and divisive in history. And we are already feeling the tremors of the coming earthquake.
On Feb. 25, in McKinney v. Arizona, the court allowed a prisoner’s capital sentence to stand even though it was imposed unconstitutionally. A judge, not a jury, found McKinney eligible for death, and the Supreme Court deemed this judicial fact-finding unconstitutional, in Ring v. Arizona, nine years after he was sentenced. Yet Justice Brett Kavanaugh, writing for the majority, refused to let McKinney be resentenced by a jury. Justice Ruth Bader Ginsburg wrote a dissent joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. She argued that when a court independently reviews a capital sentence, it’s obligated to apply Ring. Kavanaugh’s insistence on preserving Arizona’s unconstitutional sentences sealed the fate of 20 people on the state’s death row.
A few minutes after Kavanaugh announced McKinney, Justice Samuel Alito handed down Hernández v. Mesa, which decreed that victims of cross-border shootings can’t sue Border Patrol agents in federal court. Ginsburg once again dissented, pointing out that Alito’s decision ensures that Border Patrol agents, already notorious for their lawless brutality, will be accountable to no one when they murder innocent people.
Then, on Tuesday, the court released Kansas v. Garcia, another Alito decision. Joined by his fellow conservatives, Alito held that states can prosecute immigrants for fraud when they use false Social Security numbers to obtain employment. This time, Breyer dissented, joined by the other three liberals.
There can be a great deal of negotiation behind the scenes as the justices discuss cases at conference, then circulate drafts of opinions. Kagan has said that she seeks to “take big divisive questions and make them smaller and less divisive,” to “reframe the question and maybe split off a smaller question.” Her approach has succeeded from time to time because she is willing to give conservatives small wins to avoid a fiasco for the left. Chief Justice John Roberts has repeatedly partnered with Kagan on this project. Like Kagan, Roberts knows that every 5–4 decision hurts the court’s institutional legitimacy, creating the impression that the justices are just Republicans and Democrats in robes.
The speed with which McKinney, Hernández, and Garcia came down suggests that each justice took a hard line from the start; there is no indication in the opinions that the conservative bloc tried to build bridges with the liberals. Before he retired, Justice Anthony Kennedy sometimes forced his conservative colleagues to compromise, watering down conservative victories or leading a larger coalition of justices to a narrow ruling. Now that Kennedy is gone, the conservative bloc has grown more aggressive in bending the law sharply to the right.
According to Adam Feldman of Empirical SCOTUS, which analyzes Supreme Court statistics, the court has not handed down so many closely divided decisions so quickly for a decade. In the 2009–10 term, the court announced two 5–4 rulings and one 5–3 ruling in argued cases by early March, including Citizens United. This term will almost certainly bring more overall 5–4 decisions than that one did. The court has already heard arguments in cases involving LGBTQ discrimination, gun control, DACA, and the Consumer Financial Protection Bureau. On Wednesday, it will hear a major abortion case that asks whether states can regulate abortion clinics out of existence.
The court’s Republican-appointed majority reached a maximally conservative outcome in McKinney, Hernández, and Garcia. Their unyielding position does not bode well for progressives anticipating the blockbusters coming down the pike. For years, liberals counted on Kennedy to join them from time to time, or find a centrist position that could attract a lopsided majority. Those days are over, and Kavanaugh has shown no desire to fill Kennedy’s shoes. By the end of June, we will learn just how far this conservative revolution will go. But it’s already clear that the majority has lost interest in appeasing their more liberal colleagues with concessions and compromises.
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