I think there is probably a bit of confirmation bias and media distortion here; plenty of Supreme Court decisions, even on high profile topics, aren't 5-4 or are 5-4 but don't break "conservative 4" + "liberal 4" + Kennedy (e.g., the decision uphold the Affordable Care Act [1] was 5-4, with Roberts plus the four liberals in the majority, and the four remaining conservatives, including Kennedy, in the minority.) But for the months the case was before the Supreme Court, the media was harping on how it was bound to be 5-4 with Kennedy as the swing vote, so what do you think sticks more in people's minds -- the actual result that was highlighted on the day of the decision and then dropped, or the "everyone knows" that was a focus of attention for months?
And, on the decision letting stand the District Court decision [2] striking down Prop. 8 in California based on the Prop. 8 supporters lack of standing to appeal the decision, also announced today, the 5-4 decision had Roberts, Scalia, Ginsberg, Breyer, and Kagan in the majority with Kennedy, Thomas, Alito, and Sotomayor in the minority.
[1] NFIB v. Sebelius, http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf [2] Hollingworth v. Perry, http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf
It's apparently a 'well-known fact' at this point that Roberts switched his vote at the last minute on the ACA ruling.
Also, some cases are more political than others. Most cases are not 5:4 votes. This is one of those political cases: where you come out depends on whether you view homosexuality as a protected characteristic where people's rights should trump the law as passed by the elected branches, or whether you don't view it as a protected characteristic in which case the default of deference to Congress wins out.
What's interesting are the political cases where the votes don't follow the politics. Look at the vote on Hamdi v Rumsfeld. That was a very political issue at the time, but the votes came out not along party lines at all.
It's also interesting to look at what happens when the parties change their positions relative to the justices they appointed. E.g. Stevens was appointed by a Republican and came out liberal. Thomas was appointed by a very moderate Republican but has come out very conservative. Roberts and Alito were both appointed by GWB, but the former has come out very moderate and the latter quite conservative.
IIRC, if you assess the salience of particular political issues at the time a Justice is appointed, and then look at how they vote on those issues throughout their career, they tend to be pretty consistent with the appointing administrations views on issues that were of high salience when the justice was appointed to the Court, and less consistent the lower the salience of hte issue was at the time the justices are appointed.
This tends to support the idea that justices are much more appointed for the views on high-profile issues than any kind of broad "judicial philosophy".
Since the state declined to defend the law at lower courts, SCOTUS sent it back to that court with directions to dismiss it.
From Amy Howe at the SCOTUS Blog:
"Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case."
And since it was just posted, here is the same type of explanation for the DOMA ruling:
"Here's a Plain English take on United States v. Windsor, the DOMA case: The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples."
It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.
Why would ideology be any less influential in a closely-contested vote on whether a high-profile case procedurally warranted decision; if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
I disagree because justices habitually take the point of view that the principle established is more important than the result achieved. Therefore a variety of ideologies can result in a procedural decision that rules for a side that the justice may or may not personally agree with.
Take this case. Everyone knows that, no matter what happened in the court, California is going to have gay marriage soon. Popular support is running in that direction and it is just a question of time. So whether that happens now or in 3 years is not that important. Thus a justice who does not like gay marriage would not lose much overturning proposition 8.
But what do they gain? The result of their decision is that states which allow voters to pass propositions that the state government does not like, now have an approved legal trick to undo those propositions. Namely try to get sued, then fail to defend the proposition adequately. The court overturns it, and the proposition dies.
If you're a justice who thinks that voter propositions tend to be bad, providing that precedent could be more important to you than the outcome. But since that's a fairly esoteric legal issue, there is little correlation between your feelings about that, and how conservative or liberal you are.
Thus I would not be surprised if one or two of the justices who decided on that procedural ground actually are personally against gay marriage.
But, you say, why wouldn't they avoid that in a high profile case? The answer is because cases become high profile based on what the justices can do. After they act, they can make them unimportant. In this case they could have declared gay marriage legal throughout the entire country on constitutional grounds. (The case was brought in hope of that exact outcome.) Instead a technicality was established, and California got the result that would have happened anyways inside of 5 years.
That's the difference between the front page story on the NY Times and being buried as a couple of sentences in an article about a more important decision that was handed down at the same time.
...if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
My point is that the connection between the specific outcome of the case, and the outcomes that the justices care about, tends to be weaker for procedural decisions than merits decisions. Therefore we should treat procedural decisions differently from merits decisions. In particular, we should be more cautious about assuming that the underlying ideology matches the obvious headline.
Right, so its a weaker outcome. But if we assume that justices have ideological concerns with policy outcome, there is no reason that the selection to make a procedural decision would be any less a subject to those concerns than the selection to make a merits decision. In fact, the fact that it is a weaker outcome (on the subject addressed by the substance of the case) than a merits decision with similar effect in the immediate case would in some cases be the motivation for pursuing it for an outcome-oriented justice.
I think this is a fairly strained interpretation to try to defend the idea that the court is iron-locked into the "liberal 4" + "conservative 4" + Kennedy divide (casting a different divide as Roberts trying to create an illusion about the court), and it falls down when you have high profile cases like the today's Hollingsworth v. Perry [1] where the majority is made up of Roberts, Scalia, Ginsberg, Breyer, and Kagan.
[1] http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf
Why? So he doesn't have a problem getting "re-elected?" I'm not sure why you think he is worried about the appearance of the court in that way.
Remember, the Court gave itself the powers it has in Marbury vs. Madison, and has at times had folks like Jackson go "let them enforce it". If public opinion turns against the Court, politicians can as well.
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