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March|April 2005

Taking Sides

Many believe political differences rend the Rehnquist Court. But more than politics are in play.

By Mark Tushnet

Is the Rehnquist court dominated by politics or law? Press coverage of the court has given us one view, but after an unprecedented 10 years of collaboration among the current nine justices, numbers can enrich that story. Patterns of agreement among the justices confirm what newspapers tell us: There is a group of "conservatives" who usually vote together and oppose another group of "liberals," who themselves vote together often. Just look at who agrees in more than 60 percent of the cases.

But the agreement rates also indicate that these groups aren't completely cohesive. Liberal justices sometimes agree with conservatives: Justices John Paul Stevens and Antonin Scalia joined together in last year's Hamdi case, for example. And, of course, there are unanimous decisions.

The rising rate of concurrences suggests that the conservative and liberal blocs aren't held together by tight, commonly shared ideologies. I've argued in A Court Divided that the basic dynamic on the Rehnquist Court has been a division between traditional ("Rockefeller") Republicans and modern ("Goldwater-Reagan") Republicans. The increase in separate opinions could be a manifestation of that division. Narrow but conservative opinions from traditional Republicans have encouraged concurrences from modern Republicans who would have preferred that the court went further. Similarly, opinions by modern Republicans have invited concurrences from traditional Republicans to keep the opinions from going too far.

Cass Sunstein's analysis of the court offers an alternate explanation. The University of Chicago professor sees the conservative group divided between justices who have a thoroughgoing conservative judicial ideology, and others who have conservative inclinations but want to move ahead cautiously. According to Sunstein, concurrences have come from cautious conservatives attempting to limit the reach of decisions penned by ideological conservatives—and from ideological conservatives describing how they wish cautious opinions had gone further.

Concurrences are trickier to understand when the smaller liberal group prevails, because it can do so only with help from the conservative side. In theory, liberal concurrences could parallel part of the behavior on the other side: expressing authors' hopes that the court will move farther down the liberal road. But as the senior justice who assigns opinions when the liberals prevail, Stevens has been a master of choices that keep fragile liberal majorities together, which might include leadership in damping down that sort of separate writing.

So far I've offered a basically political interpretation, but there is a more legalistic alternative. I've heard law clerks who worked for justices on both sides of the court express their dismay that, as they saw things, few justices seemed to consider the legal merits of the claims they heard. Maybe so—only insiders can really know. But suppose the court really is divided, not between liberals and conservatives, but between ideologues and justices who take the claims of law seriously. That division might well result in a flurry of concurrences, but the decisions the court hands down would often depend on how the second group of justices analyzes the legal questions. And in those instances, the law the Supreme Court makes would truly be law, not merely the reflex of ideology.

It's an interesting possibility. And, as Ernest Hemingway wrote, wouldn't it be pretty to think so?

Whose Side Are You On?
Agreement between pairs of justices by percentage in non-unanimous cases.

Agreement rates over the past decade support accounts of a political divide on the court. Antonin Scalia holds the records for the highest rate, in rulings with Clarence Thomas, and the lowest, with John Paul Stevens.

Mark Tushnet is the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center.

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