An underappreciated fact about the U.S. Supreme Court is just how often its decisions are unanimous, or nearly so. In past years, the two justices who disagreed the most often were Ruth Bader Ginsburg and Samuel Alito – and even then, they only disagreed about one-third of the time. Above is a visualization of “disagreement distances” as visualized by Amanda Cox at The Upshot. Note the low percentages.
The late Antonin Scalia, a fixture of the conservative establishment, was the most charismatic of a three-justice bloc that included Clarence Thomas and Samuel Alito. Read this profile by Adam Liptak at the New York Times, and this rather amazing interview by Jennifer Senior at New York magazine.
Despite the Court’s frequent consensus, the closely divided cases are of critical importance. Without Scalia, many of the remaining decisions this term (i.e. between now and June) will split 4-4, in which case the lower court ruling will stand. Such decisions will be specific to the case at hand, and not establish a binding precedent for other cases. For an overview of the consequences, see this summary by Ian Millhiser at ThinkProgress, which includes climate change, immigration, voting rights, affirmative action, and more.
Because of the makeup of the lower courts, the views of the liberal wing of the court will have a slight advantage – but not as great as if the Senate confirms a successor named by a Democratic president, whoever he/she is. Historically, presidential election-year appointments have been routine (link: SCOTUSblog). This year, we’ll see. Senate Republican leadership says they won’t consider a nomination…though after a few 4-4 ties, I wonder if they will eventually come around.
If I were a betting man, I would say that the Roberts Court’s impact on voting rights (link to Rick Hasen’s overview) is about to enter a very different phase. For example, consider two of this year’s cases. The Harris v. Arizona Independent Redistricting Commission case concerns the latitude that such Commissions have in drawing districts. Oral arguments occurred in December. The outcome depended on Justice Anthony Kennedy’s vote, but probably not any more. Now the case is virtually certain to favor the Commission.
And then there is the Evenwel v. Abbott case, which governs the question of how to draw districts to be equal in size – by population, or by voter registration? Equal population is the longstanding norm. That already seemed unlikely to change, now even more so.