The Karl Rovification of the Supreme Court

As I noted last week (here), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative (here). Jeff Toobin makes the same point in The New Yorker (available here, and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4.

Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000 decision in Nebraska v. Carhart; yet Justice Kennedy's opinion, while drawing a plausible distinction with respect to the notice issue, basically punted on distinguishing the Nebraska case with respect to the health exception. The majority could have said it was overruling the Nebraska case, but for their own reasons they didn't want to, so their response to the dissenters was the jurisprudential equivalent of a shrug.

Likewise in last week's ruling in Bowles v. Russell, in which the Court held that the 14 day maximum extension for filing a notice of appeal is jurisdictional, thus throwing out the appeal of a man who filed two days late, after being told by the district judge that the deadline was still a day away. Justice Souter just can't seem to get the majority to focus any attention on the fact that recent unanimous decisions reject the definition of "jurisdictional" deadlines that Justice Thomas's opinion adopts. The closest Justice Thomas comes to addressing Souter's objections is to dismiss them as dicta. (My FindLaw column for tomorrow addresses the merits of Bowles. Hint as to my take: I call the majority decision "Kafkaesque.")

What seems to be happening on the Court has some similarity to Karl Rove's political strategy of solidifying the base and ignoring anybody to the left of the exact median vote. Like President Bush, Chief Justice Roberts is happy to have bipartisan support for his decisions, where bipartisan means that he rules as he wants and is happy to have the liberals join him sometimes. The nine Justices are not the entire American electorate, of course, and so the strategy is more predictable at the Court. As long as Roberts et al can get Kennedy's vote, they don't really care what Stevens, Souter, Breyer or Ginsburg think.

Sure, one occasionally sees an unusual lineup, and contrary to Toobin's suggestion otherwise, none of this appears to be personal. Justice Ginsburg may be expressing professional annoyance when she reads her dissents from the bench, but she can still socialize with the Scalias. And Justice Breyer's standard stump speech continues to include the assurance that the Justices play nicely with one another. But the continued observance of inter-personal niceties should not obscure the fact that at a jurisprudential level an important shift may be underway.