Measuring “Divisiveness” in OT06

The following post is by Adam Chandler. It is another in our series of posts analyzing this Term’s statistics (which can be found here.)

With seven of the eight decisions handed down by the Supreme Court in its final week being split 5-to-4, indications are that it has been a particularly fractious year for the Justices. This post will attempt to assess the divisiveness displayed by this term’s decisions.

Using as a yardstick the average number of dissenting votes per case decided over the term, we note that the dissension rate is the highest it’s been in at least a dozen years. The average opinion this term garnered 1.82 dissenting votes. The most recent term with a rate about that high is OT 2001 with 1.81. (Under this metric, the level of divisiveness produced by two 7-2 decisions is the same as that produced by one 9-0 decision and one 5-4 decision.)

Divisiveness was seemingly at a recent low during October Term 2005, the first under Chief Justice Roberts. The Court had purposefully avoided taking on difficult cases as it was preparing for a mid-term transition from Sandra Day O’Connor to a new justice. As a result, a decision during that term carried, on average, only 1.21 dissenting votes.

But the underlying divisions of the newly-composed Court made their way to the forefront in October Term 2006. Cases on abortion, gender discrimination, race in education, campaign finance, and global warming were all on the table, and each resulted in a 5-4 split. Despite Roberts’s call for rulings on narrow grounds to build greater unanimity, a full third of the cases in his second term as Chief were decided by 5-4 opinions, the highest proportion in over a decade (see Ben’s post here about the 5-4 splits this term).

Not only were there more 5-4 decisions, but they also split in predictable alignments more frequently. Since OT 2000 six years ago, no term has produced a higher percentage of 5-4 cases decided in an ideological split (in which Justices O’Connor and Kennedy are considered along with the liberals and the conservatives). Nearly 80% of the 5-4 decisions this term split along traditional ideological lines, possibly indicating further entrenchment of both the left and the right.

These numbers point to what could be a mounting antagonism within the Court’s new composition, evidenced in some strongly-worded dissents and concurrences this week. Justice Scalia, never one to pen his dissents gingerly, recently mocked Justice Roberts’s plurality opinion in FEC v. Wisconsin Right to Life as “faux judicial restraint.”

But most of the heat is coming from the liberal wing. Justice Ginsburg’s reading of two dissents from the bench this term drew much attention and was widely noted as a sign of her increased frustration with the conservative majority. And on the last day of the term, an unmistakably aggravated Justice Breyer read two dissents, making him the fourth and last member of the liberal bloc to give an oral dissent in a significant case this term. In the school integration cases, he penned a 77-page dissent, twice as long as any other he’s written, and announced from the bench that “it is not often in the law that so few have so quickly changed so much.” Betraying feelings of either helplessness or indignation (and quite possibly both) among the liberals, he ended the reading of the last opinion of the term with “I must dissent.”