If you suspect we live in a particularly partisan time, take a look at the Supreme Court.
Since 2005, when John Roberts became Chief Justice, the Supreme Court has split 5-4 a whopping 22% of the time, and every one of its major rulings (Lilly Ledbetter, Citizens United, Political Donation Caps, Gun Control, ObamaCare, Voting Rights Act) have been by 5-4 votes. And the splits are nasty. The justices accuse each other of such things as “legalistic argle bargle” and write dissenting opinions filled with condescension and mockery.
But it’s always been that way, right? Truly important legal questions, the defining rulings, are by their nature polarized and polarizing. Surely in the long history of the United States, the most important Supreme Court decisions must have been the most hotly contested…right?
We took a look. Herewith the Greatest Hits of the Supremes, the 10 defining decisions of the Court, and how they voted.
1. Marbury v Madison (1803)
This case established the Court’s power of judicial review, and defined the boundary between executive and judicial branches. The Court voted unanimously, 4-0.
2. McCulloch v. Maryland (1819)
The Court ruled that the Federal Government’s powers supersede those of the states. Unanimous, 7-0.
3. Gibbons v. Ogden (1824)
The federal government has sole power over interstate commerce. Unanimous, 6-0.
4. Dred Scott v. Sanford (1857)
This notorious decision upheld that slaves who are taken to free states do not then become free. This decision helped precipitate the Civil War. And it was a 7-2 vote, the only dissenters being northern Republicans.
5. Texas v. Johnson (1989) 5-4
A man burns an American flag, in Texas no less, and then claims it’s his right to free speech. The court agrees, but only by a 5-4 margin.
6. Plessy v. Ferguson (1896), and
7. Brown v. Board of Education (1954)
In one of the great turnarounds in U.S. History, the Court rules in 1896 that “separate but equal” segregation on trains was constitutional, but then in 1954 rules that public school segregation was not. A momentous change, both decisions by a 7-1 margin.
8. Gideon v. Wainwright (1963), and
9. Miranda v. Arizona (1966)
In 1963, the idea that a defendant has the right to an attorney was a slam dunk; the court agreed 9-0. Three years later, those rights were expanded to include the right to remain silent and to have the State appoint a lawyer to any defendant who can’t afford one, but that was a tougher decision, 5-4.
10. Roe v. Wade 1973
And finally the momentous modern decision which people on both sides have been screaming about for years. The Court upheld a woman’s right to privacy and to have an abortion. But it also gave states the rights to regulate such abortions. It must have been an epic discussion and a difficult decision. Or not. The court voted 7-2.
The truth is, one-vote split decisions are historically rare; they occurred only 2% of the time between 1801 and 1940. Our modern partisanship in not inherent in the law, but instead is inherent in our justices. The current Supreme Court is simply wired to vote 5-4 along party lines.
It’s a problem, and one that was spotted some time ago. Way back in 2005, one of the nation’s foremost judges said in an interview that the Supreme Court had reached a critical moment. The Court had to learn to speak with one voice more often, and that if it didn’t “it’s going to lose its credibility and legitimacy as an institution.”
That judge was right. But unfortunately he has done little about the problem. The judge’s name is John Roberts, and he made this remark just after becoming the 17th Chief Justice of the Supreme Court.
He has since gone on to oversee the most partisan Supreme Court by far in the history of the nation.
– Mike Keeler
