Last week’s ruling in Citizens United v. FEC marked the third time in under two weeks that the Court made a 5-4 ruling which separated the Court’s more liberal and more conservative justices, with Justice Anthony Kennedy casting the deciding vote (the other two rulings involved a death row appeal and an order stopping the California gay marriage trial from being broadcast).
This early trend suggests that the retirement of Justice David Souter and the addition of Justice Sonia Sotomayor to the High Court has changed little in terms of ideological Supreme splits. Despite Chief Justice John G. Roberts, Jr.’s expressed desire to have consensus on the Court as often as possible, many cases still come down to one question: Will Kennedy side with Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito on the right, or will he head left to join Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sotomayor.
Of course, most of the Court’s rulings are made by a clear majority of seven justices or more. It’s also worth noting that, taking a look at last term, in the cases that did come down to a 5-4 split – just over a quarter of them did – not all fell along partisan lines. Some rulings, particularly those in criminal law cases, divided the justices differently. For example, in the search and seizure case Arizona v. Gant as well as the Confrontation Clause case Melendez-Diaz v. Massachusetts, Justices Stevens, Scalia, Thomas, Ginsburg and Souter made up the majority.
But some of the more controversial cases did divide the Court’s liberal and conservative blocs solidly, including: Citizens United (which technically falls in the 2008 term), Ricci v. DeStefano (the New Haven firefighters’ discrimination case that became a central issue in Justice Sonia Sotomayor’s confirmation hearings); Bartlett v. Strickland (the Voting Rights Act case); Ashcroft v. Iqbal (which underscored the heightened civil pleading standard established in Bell Atlantic Corp. v. Twombly); Gross v. FBL Financial Services (which eliminated the “mixed-motive” age discrimination cause of action); and FCC v. Fox Television Stations (which allowed networks to face fines when celebrities say naughty words).