Those who just days ago were proclaiming a new “era of good feelings” on the Court have been definitively proven wrong. Indeed, the last two weeks have seen more 5-4 divisions than the entire rest of the year to that point. While we have seen more unanimous rulings and fewer narrow splits than last term – when a full third of the cases came out 5-4 – this is clearly a function of the vagaries of the docket and not any shift in ideologies, judicial philosophies, or voting strategies. True, the Court under Chief Justice Roberts’ direction has increased the portion of business cases (typically more technical and therefore less divisive), but still the constitutional cases that catch the public’s eye – relating to social issues, civil rights, and national security – divide the Court on predictable lines. While this is in some senses unfortunate – we would prefer the highest court in the land to speak with one voice in resolving the nation’s deepest disputes – it is better for five justices to hold to their constitutional duty to say what the law is than to have nine produce a lukewarm opinion that either splits the baby or, worse, legislates from the bench. All in all it was a pretty good term for those concerned with upholding constitutional rights and limiting governmental powers (as well as reining in lawsuit abuse), but a sanguine consensus remains a pipe dream.
Featuring Mike German, Senior Policy Counsel, American Civil Liberties Union; Eileen Larence, Director of Homeland Security and Justice Issues, Government Accountability Office; Michael Price, Counsel, Liberty & National Security Program, Brennan Center for Justice; and Jim Harper, Director of Information Policy Studies, Cato Institute.
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