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How Divided is the Supreme Court, Really?

Scrolling through my personal Facebook feed recently, I came across a post expressing deep concern over “all the 5-4 rulings” potentially diminishing the stature of the Supreme Court. There is no denying that some 5-4 decisions generate a lot of publicity, particularly when those decisions involve hot-button issues like abortion and other so-called social issues.

Just this week, the Supreme Court delivered three 5-4 decisions that, for some, may validate that concern. In June Medical Services v. Russo, the Court ruled that a Louisiana law requiring doctors performing abortions to have admitting privileges at nearby hospitals violated the Constitution, with Chief Justice John Roberts joining the Court’s “liberal minority.” In Espinoza v. Montana Department of Revenue, the Court ruled that states cannot ban public funding of scholarships for religious schools when those benefits are available to other schools, with Chief Justice Roberts writing the opinion for the “conservative majority.” And in Seila Law v. Consumer Financial Protection Bureau, the Court ruled that the structure of the Consumer Financial Protection Bureau violated the separation of powers, and held that the Court could strike out the unconstitutional part of the agency’s structure without eliminating the agency. Again, Chief Justice Roberts wrote the opinion for the majority.

But how prevalent, really, are these 5-4 decisions? According to Ballotpedia.org, of the 54 cases decided by the Court so far in the 2019-2020 term, just nine were decided in 5-4 splits, while 16 cases were unanimous, and another 12 had eight of the nine Justices in agreement. A little math shows that the 5-4 decisions represent just around 17% of the decisions this term, while unanimous or nearly unanimous decisions represent around 52%, with the remaining cases decided by a clear majority (one other than a 5-4 split.) If we include decisions issued per curiam (decisions issued by the Court that are generally non-controversial and often unanimous), the cohesion of the Court is even more pronounced.

This admittedly rudimentary analysis doesn’t distinguish between cases that affirm a lower court decision, reverse one, or vacate and remand the case back to the lower courts, and doesn’t analyze the rate of 5-4 splits in prior Supreme Court terms. But it does show that the Court is not necessarily as divided as it may appear based on media reports of decisions on hot button issues.  But remember, not all cases heard by the Supreme Court involve those issues. Sometimes it’s an interesting (for me) trademark case, like United States Patent and Trademark Office v. Booking.com, also issued this week, wherein the Court voted 8-1 that adding “.com” to a generic word (like “booking” in the travel industry) can make the entire combination eligible for trademark protection. (For anyone not versed in the vagaries of U.S. trademark law, trademark protection is generally not available for generic terms.) Sure, there were media reports about this case, but trademark issues tend not to stoke people’s passions the way some social issues do.

More decisions will be issued in the coming days. We’ll see if they resemble the 5-4 splits we’ve seen this week, or the more prevalent unanimous and near-unanimous decisions of the rest of the 2019-2020 Term.

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