Friday, March 05, 2021

A Preliminary and Barely Data-Based Observation About SCOTUS Polarization

by Michael C. Dorf

Yesterday the Supreme Court handed down two opinions that divided the Court on ideological grounds (although Justice Kagan joined the Republican appointees in one of them). The cases involved immigration--which is often ideologically divisive--and the Freedom of Information Act--which sometimes is. My interest here is not so much in the merits of either case as it is on the evidence for increased polarization that they supply.

Justice Breyer authored the principal dissent in each of yesterday's cases. That's striking. Justice Breyer is not a frequent dissent-writer. The notion that he would write two dissents in one day in two relatively-low-temperature cases suggests something is up. That something, I would suggest, is increased polarization.

Consider (based on data available here) that in the Supreme Court terms from Justice Kagan's addition through Justice Kennedy's retirement, Justice Breyer dissented in, respectively 5, 5, 4, 4, and 3, or an average of just over four cases per Term. By that standard, two in a single day early in the Term is quite a lot. But it's not such an outlier when gauged against the more recent numbers. Since Justice Kennedy's retirement, we see dissents in 6, 7, 10, and 7 cases per Term, for an average of a little over seven cases per Term.

Now in one obvious sense, this is not evidence of increased polarization. Rather, as the Court moved right, Justice Breyer moved from the Court's center-left to its left. Without Justice Kennedy occasionally joining to form a liberal majority in a divisive case, Justice Breyer found himself more frequently in dissent and thus more frequently writing dissents. The trend should accelerate with Justice Barrett's having filled the vacancy created by Justice Ginsburg's death.

I acknowledge that mere median-shifting accounts for much or perhaps all of the increasing frequency of Breyer dissents, but I want to suggest another possibility: Perhaps he has given up on a certain kind of centrism.

During the period when Kennedy was the median Justice, as during the prior period when O'Connor was the median Justice, Breyer displayed a pragmatic streak. Partly he was simply less liberal than Justice Ginsburg or Sotomayor. But one also had the sense that both he and Justice Kagan (more about her in a moment) were deliberately trimming some of their more liberal leanings in an effort to woo Justice Kennedy and Chief Justice Roberts.

Consider the votes of both Breyer and Kagan to invalidate Medicaid expansion in the Obamacare case on grounds that Kagan rightly tore to shreds during the oral argument (as emphasized in Ginsburg's dissent on this aspect of the case). It is difficult to see those votes as anything other than an effort to give Roberts some cover for his coming over to their side on the mandate question. Likewise, some of Breyer's and Kagan's votes in free exercise and establishment clause cases seem more religion-friendly than one would guess their real views are--and for roughly the same reason.

Perhaps I'm wrong. Maybe Breyer and Kagan were voting their legal consciences 100% all the time, and it only looks like they were sometimes trimming in order to maintain their credibility and influence with the least conservative of their conservative colleagues. But from where I sit, it sure does look like that was what they were doing--at least sometimes.

Now we come to my hypothesis about Breyer: He has largely given up on moderating his best all-things-considered judgment in the hope of moderating the Court overall. On a Court in which the best one can hope to do in an ideologically high-stakes case is swing the Chief to convert a 6-3 defeat into a 5-4 defeat, the game isn't worth the candle.

Can I prove that Breyer's attitude has shifted in this way? No. And I certainly can't prove it of Justice Kagan. After all, she did join the conservatives in yesterday's FOIA case, although that might have another explanation.

Justice Barrett authored the majority opinion--her first for the Court. By tradition, the Chief assigns a new Justice a unanimous case to write first. The tradition is hardly sacrosanct, but it's a bit odd that it wasn't followed here. Maybe there are just too few unanimous cases. Whatever the explanation, maybe Justice Kagan joined in the hope of wooing Justice Barrett. Interestingly, Kagan was the last new Justice to write a first majority opinion in a non-unanimous case; Scalia dissented; perhaps it still stings. If Justice Kagan is indeed trying to charm Justice Barrett in the hope of moderating her votes in some later cases, I wish her luck in the campaign, but I am not very confident that she will succeed.

As I've said now multiple times, my diagnosis is highly speculative, what I've sometimes derided as SCOTUS kremlinology. It depends as much on my feel for what's happening based on tone and subtle patterns as on statistical or legal analysis. But it is my at-least preliminary sense. 

That sense has one further dimension or implication: If the Court is not simply moving right (as it is), but if the center-left Justices are giving up on wooing conservative colleagues, then we are likely to see increased polarization. 

My latest Verdict column discusses Monday's oral argument in US v. Arthrex--an Appointments Clause challenge to the use of Administrative Patent Judges (APJs) within the US Patent & Trademark Office (PTO). The Federal Circuit held that such judges exercise sufficient independent authority to count as "principal" rather than "inferior" officers who can hold office lawfully only if appointed by the president and confirmed by the Senate. Because APJs are appointed by the Secretary of Commerce--a procedure the Constitution allows only for inferior officers--the Federal Circuit held the current arrangement unconstitutional. The oral argument on Monday focused on the line between inferior and principal officers as well as the proper remedy if the Federal Circuit's merits ruling is affirmed.

If the last paragraph put you to sleep, you're probably thinking the case involves a technical, non-ideological issue. But as I argue in my column, the ideological stakes are high. The Justices treated the lawyers and each other with respect, of course. One needs something like a secret-decoder ring to see the politics, but it's there.

Would a case like that have been ideologically divisive ten years ago? Possibly. I'm not saying we are entering uncharted territory. Not at all. We have seen periods of ideological extremism combined with polarization before. My observation for today is that if Justice Breyer has given up on wooing his conservative colleagues because he has concluded it's futile, and if Justice Kagan draws the same conclusion, we should expect such a period again. Indeed, we may already be in one.