Look at the Court's most deeply divided decisions. The 5 to 4's on hot button issues. The votes are just what would be expected. Forget about judicial activism and restraint. Forget about strict or loose construction. Forget about textualism, originalism, original intent, specific intent, general intent, neutral principles, overriding principles, deference to the democratic branches, deference to the states or local governments, deference to precedent, plain meaning, underlying purpose, etc., etc., etc. Instead, think about political ideology. Think about how each Justice might vote, not as a judge, but as a politician. Only a first year law student or a self-deluded believer that judges can be truly neutral or objective (and these are usually judges themselves), would miss the obvious. And it can't be more obvious than it was this year--again, as it has been in years past. Indeed, as it was in the beginning with President Washington's and President Adams' Federalist-stacked Courts.
Consider the hottest hot-button 5-4 decisions of the Court this past term. There was Boumediene, in which the Court decided that the alien detainees at Guantanamo are entitled to habeas corpus. The split vote, just as would be expected on purely political grounds, was liberals Stevens, Souter, Ginsburg, and Breyer on one side, and conservatives Roberts, Scalia, Thomas, and Alito on the other. The difference--another non-surprise--was moderate-conservative swing vote Kennedy. And the liberals prevailed here because Kennedy joined (and wrote the opinion for) them. (For more, see "The Boumediene Decision" posts, July 14 and June 10, on the New York Court Watcher.)
Then there was Kennedy v. Louisiana, where the Court ruled that the death penalty was not a permissible punishment for the rape of a child. Obviously, that was a liberal victory and, just as obviously, the liberals Stevens, Souter, Ginsburg, and Breyer voted for that result, and conservatives Roberts, Scalia, Thomas, and Alito voted against it. Kennedy again voted with the libs (and again authored their opinion), swinging the 5-4 decision in their favor. (For more, see "Supreme Court: No Death Penalty for Child Rape" posts, July 3 and June 24.)
On the other hand, there was Heller in which the Court ruled that the right to bear arms was an individual right and that the D.C. handgun ban was unconstitutional. That conservative victory was the result of the exact same political ideological split as in Boumediene and Kennedy--pure liberal vs. conservative--except that Kennedy-the-swing sided with the conservatives to give them the 5-4 victory this time. (For more see "Supreme Court: Right on the Gun Right," posted on June 27.)
The decision in Davis v. Federal Election Commission, invalidating the so-called "Millionaire's Amendment" to the McCain-Feiingold campaign law, was a favorite of political conservatives this past term. And, [You got it !] the line-up at the Court was the political conservatives Roberts, Scalia, Thomas, and Alito against the political liberals Stevens, Souter, Ginsburg, and Breyer-- with the conservatives prevailing in this one because [You got it again !] Kennedy voted with them in this case.
The conclusion to be drawn from this is startling. But only in the sense that some might find it surprising. For it is, in reality, startlingly obvious. At least it should be to anyone who follows the Supreme Court--or, for that matter, any high court (such as a state supreme court). These tribunals deal with difficult, fundamental issues about freedom versus authority, liberty versus order, the meaning of a free and just society and the relations between its people, and other similarly philosophical questions. Of course judges and justices are going to have very strong beliefs and feelings on these matters. Just like the rest of us. And these strong beliefs and feelings strongly affect their decisions. How could it be otherwise?
Holmes and Cardozo both acknowledged this unavoidable--and, indeed, essential--feature of judging. Other legal realists, on and off the bench, have maintained and demonstrated this as well. But it seems always to be a bit of a surprise. Even to those who already accept its truth. Especially when it is so clear. As it was this past term in the Supreme Court's 5 to 4 decisions.
