July 1 (Bloomberg) -- Republican-appointed justices split with their Democratic colleagues in a dozen cases, including the Wal-Mart Stores Inc. class-action fight, as an unprecedented dynamic shaped the U.S. Supreme Court term that ended this week.
The newest justices fueled the trend, rewarding the men who appointed them with consistent and predictable votes. President Barack Obama’s two choices, Sonia Sotomayor and Elena Kagan, voted in virtual lockstep and usually alongside fellow Democratic appointees Ruth Bader Ginsburg and Stephen Breyer. Former President George W. Bush’s two selections, Chief Justice John Roberts and Justice Samuel Alito, voted together more than any other duo.
“We’re in a different era,” said A.E. Dick Howard, a constitutional law professor at the University of Virginia in Charlottesville. “This is the way the Roberts court is going to be, especially now that we’ve seen enough of Sotomayor and Kagan to see that they agree with each other and the two of them in turn agree with Breyer and Ginsburg.”
The high court closed its term this week with rulings striking down a California ban on the sale of violent video games to minors and part of Arizona’s public-financing system for candidates seeking state office. The court will reconvene in October for a term that could include clashes over Obama’s health-care law and same-sex marriage.
The court has long had its ideological divisions, sometimes so intense that feuding justices barely spoke to each other. Until now, those splits have always crossed party lines. The two most recently retired justices, Republican-appointed John Paul Stevens and David Souter, regularly voted with the court’s liberal wing on social issues including the death penalty and abortion.
With Kagan and Sotomayor now occupying those two seats, the split can be a party-based one as well. The court’s five Republican-appointed justices disagreed with their Democratic- nominated colleagues in 10 cases this term, according to statistics compiled by Scotusblog, a website that tracks the court.
That figure doesn’t include the Wal-Mart gender-bias case. The justices were unanimous on one aspect of the case, agreeing that a lower court improperly certified a class action on behalf of more than a million female workers. The justices split 5-4 on whether to give the workers another chance to argue for class- action status, using a more stringent legal test.
In the cases that “most of us care about,” the politics of the nine justices now align with those of the presidents who appointed them, says Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center of Public Affairs. She called the phenomenon “unprecedented.”
Business cases proved especially divisive. The justices split 5-4 in letting companies force their customers and employees to take disputes to arbitration without the option of class actions. The court also voted 5-4 to shield generic-drug makers from patient suits and to limit the ability of shareholders in mutual fund companies to press securities fraud suits.
The vote was 5-3 to uphold an Arizona law that threatens companies with the revocation of their corporate charters if they hire illegal immigrants. Kagan didn’t take part because she played a role in the litigation as Obama’s solicitor general.
In each case, the five Republican appointees -- Roberts, Alito and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas -- formed the majority. All told, Roberts and Alito voted together in 96 percent of cases in which both took part, according to Scotusblog. Kagan and Sotomayor were the second- most cohesive pair, with 94 percent agreement.
The court was unanimous in almost half its cases, showing that ideology doesn’t always, or even usually, dictate the outcome. The court was of one mind in backing shareholders in two other securities fraud cases, in ruling that automakers could be sued for not moving more quickly to equip back seats with shoulder straps, and in saying companies can’t challenge the release of government documents on corporate privacy grounds.
“There’s no doubt that politics and ideology matter, that justices are behaving in some of the landmark cases as one would expect them to, but one should not overlook the other cases where there’s unanimity or near-unanimity,” Howard said.
Even so, the court’s consensus at times masked underlying divisions, as when the justices voted 8-0 to reject a bid by six states to force utilities to cut their greenhouse-gas emissions. In the same case, the court divided 4-4 on perhaps a more fundamental question, centering on the power of federal courts to consider suits over climate change.
Similarly, the justices divided in their reasoning even as they ruled unanimously that former Attorney General John Ashcroft can’t be sued by a man detained without charge for 16 days. The five Republican appointees went further and said the man’s constitutional rights weren’t violated, at least by Ashcroft.
The divide is the product of the political battles over the Supreme Court, dating back to President Ronald Reagan’s efforts to mold the court and his failed 1987 nomination of Robert Bork to it, Howard says. Greater scrutiny of prospective nominees has reduced the chances that a justice will defy a president’s expectations.
“I don’t think we’re going to get surprises anymore,” Howard said. “I don’t think we’ll see Souters and Blackmuns and Stevenses on the court,” he said, referring to the late Justice Harry Blackmun, the Richard Nixon appointee who wrote the landmark 1973 Roe v. Wade abortion rights decision.
While politics on the Supreme Court may bear little resemblance to the world of campaign fundraising and negative advertisements, the justices run the risk of being perceived as an extension of the elected branches of the government, Perry said.
“That’s what I worry about,” she said. “That the court would be sullied by the partisan splits in our electoral politics.”
--Editors: Jim Rubin, Don Frederick.
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