5-4 Votes and the “Political Court”

A few remarks on this study:

• While I understand why he uses 1-vote majorities as a proxy for a “political court,” close decisions merely reveal the inherently political nature of Supreme Court decision-making; they don’t create it.   If the Republicans had won three or four more elections and ended up with a Supreme Court full of justices who agreed on most issues (and hence had many fewer close cases), this wouldn’t mean that the legal disputes in question were no longer subject to reasonable disputation.
• In particular, the idea that the data proves that the Court has become “more political” is clearly wrong.   The Marshall Court had an exceptionally high percentage of unanimous rulings, but to claim that the Marshall Court wasn’t “political” would be silly.    Not only did Marshall sometimes interpret ambiguous legal materials in ways that were congenial to his moderate nationalist constitutional vision, he would sometimes distort statutes or precedents to avoid issuing rulings he believed reflected the best interpretation of the law in order to protect the Court politically.    Marshall Court rulings were reliably more nationalist when moderate Jeffersonians or Whigs held the White House and less nationalist when Jefferson or Jackson were in power.
• The idea that anyone could argue with a straight face that John Roberts could take us back towards Marshall Court norms still amazes me.
• But I’m sure, given the obvious similarity between dealing with other justices as dealing with faculty as a dean, Elena Kagan will be able to turn the tide!