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.