This is the second in a series of 4 posts on the New York Court Watcher exploring the current political-legal state of the Court. 15 decisions from last term were selected, not for any magic in that number, but rather because those 15 seem especially telling about the ideological and philosophical voting patterns of the individual justices. The last post looked at discrimination cases. The results of that examination were not entirely surprising, not entirely expected, and, with respect to the Court's newest member, were undoubtedly different than what would have been predicted from someone called "Scalito." (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008; but see also Well, Not Exactly NOT "Scalito" Either, August 12, 2008).
This post looks at 5 decisions grouped as "cultural issues" because, well, they seem to me to deal with issues that engender a rather high intensity of "cultural" divisiveness. And, indeed, these decisions are divided. And also (yes, Sister Mary Grace would be appalled at my grammar & syntax; but it seems to fit here), the divisions are clearly deep. The decisions involve guns, the death penalty, war, and international law.
Let's first look at each of the 5 decisions, including the legal rulings, the cultural wedges, and the justices' votes. Then we'll take a look at all the decisions and votes as a whole to see what patterns emerge and what they tell us. (Of course, you can just skip to the last couple of paragraphs for the recap. I confess, it's not exactly a Hitchcock ending.) Here are the decisions:
District of Columbia v. Heller (2008) - the right to bear arms in the Second Amendment is a fundamental right of individuals, not just states; the D.C. ban on handguns violated that right.
Cultural wedge: guns versus gun control.
Votes (5-4): Roberts, Scalia [wrote Court's opinion], Kennedy, Thomas, and Alito versus Stevens [wrote dissent], Souter, Ginsburg, and Breyer [also wrote a dissent].
Kennedy v. Louisiana (2008) - capital punishment is a disproportionate and, thus, unconstitutional penalty for child rape.
Cultural wedges: death penalty versus evolving standards; severe punishment for heinous crime versus proportionality and restraint.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter, Ginsburg, and Breyer versus Roberts, Scalia, Thomas, and Alito [wrote dissent].
Baze v. Rees (2008) - lethal injection is a constitutionally valid form of capital punishment, unless the particular method poses a real risk of reasonably avoidable severe pain.
Cultural wedge: death penalty versus prohibition on cruel punishment.
Votes (7-2): Roberts [wrote Court's opinion], Stevens [wrote separate opinion], Scalia [wrote separate opinion], Kennedy, Thomas [wrote separate opinion], Breyer [wrote separate opinion], Alito [wrote concurring opinion] versus Souter and Ginsburg [wrote dissent]. (Yeah, divisions within divisions on this one!)
Medellin v. Texas (2008) - American courts are not bound by a ruling of the International Court of Justice (ICJ), even where the President declares the ruling to be obligatory international law. (A brief summary of the background will underscore the political-legal implications: In state courts around this country, including in Texas, Mexican and other foreign nationals had been criminally prosecuted without an opportunity to seek help from their nations' embassies. That violates the Vienna Convention, a treaty ratified by the United States. The ICJ ruled that the foreign nationals have a right to a hearing in the American courts to reconsider their convictions in light of the treaty violations. The President issued a memorandum declaring the ICJ ruling to be binding international law, and the United States government argued the same at the United States Supreme Court. Nevertheless, the Supreme Court sided with Texas which refused to follow the ICJ ruling--including in this murder case which resulted in a death sentence. Ahhhh, the implications!!)
Cultural wedges: local/state government versus international law; nationalism versus internationalism; law and order versus international rights of the accused.
Votes (6-3): Roberts [wrote Court's opinion], Stevens [wrote concurring opinion], Scalia, Kennedy, Thomas, and Alito versus Souter, Breyer [wrote dissent], and Ginsburg.
Boumediene v. Bush (2008) - alien detainees held at Guantanamo Bay are entitled to a habeas corpus hearing to review their "enemy combatant" status.
Cultural wedges: war on terror versus due process; the President versus the Justices.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter [wrote concurring opinion], Ginsburg, and Breyer versus Roberts [wrote dissent], Scalia [also wrote a dissent], Thomas, and Alito.
There are the 5 decisions. In short: yes to gun rights, yes to lethal injection, and no to the ICJ; but then, no to the death penalty for child rape and yes to habeas corpus for Guantanamo detainees. So 3 for the cultural conservatives; 2 for the cultural liberals.
[Disclosure time. I agree with the Court's decisions on gun rights, lethal injection, and habeas corpus for the Guantanamo detainees, but disagree with the decisions on the ICJ and on the death penalty for child rape. I've discussed some of these in previous posts. (See Supreme Court: Right on the Gun Right, June 27, 2008; Supreme Court: No Death Penalty for Child Rape, June 25, 2008; The Boumediene Decision: 5 to 4 ??, June 14, 2008. And more generally, see Supreme Court's 5-4 Hottest Hot-Buttons: Decision By Ideological Division (Of Course!), July 25, 2008.) So, like the Court, that puts me with the cultural conservatives on 3 of the decisions and with the cultural libs on 2, even though my mix is different.]
Unlike the Court itself (or me, see above), the four conservative justices voted for the culturally conservative position in all 5 cases. Roberts, Scalia, Thomas, and Alito constituted a monolithic conservative bloc, taking the culturally conservative side in every case.
On the other hand, the liberals were not quite so uniformly unanimous. Only two of them, Souter and Ginsburg, voted for the culturally liberal position in every case. Stevens and Breyer voted with the conservatives on lethal injection. And Stevens voted with the conservatives again on the ICJ.
Moderate-conservative swing vote Kennedy voted for the culturally conservative position in 3 cases and the cultually liberal position in 2. He was on the winning/majority side of the Court in all 5 cases.
Finally, although the current Court is clearly conservative politically, culturally, and philosophically, it's decisions are not always conservative. Even in the emotionally and ideologically charged cases. The four strongly conservative justices are not always able to get the vote of one more colleague. Even when all four of the conservatives vote together. Indeed, even when they do vote together and do get at least one more vote to make a majority, they don't always agree on the reasoning. That is, in plainspeak, they don't always agree on what the law is--or should be--that led to the decision in the case. And sometimes the differences are stark. Sometimes some of the conservative justices, even when voting for the culturally conservative position, adopt reasoning--i.e., again governing law--that sounds awfully liberal. Especially when contrasted with the reasoning of the other conservative justices.
Take, for example the Baze case, where the Court approved lethal injection. The Court's opinion, written by Roberts, adopted the position that a particular method of lethal injection, or any other method of execution, would be unconstitutional if it caused needless suffering. Put more legalistically, a method of execution would be unconstitutionally cruel and unusual if there was a substantial risk of severe pain that could be significantly reduced by a readily available alternative method. In plain English: no more pain than really necessary. But even though the Court approved the lethal injection at issue in the case, a couple of justices found the standard enunciated by the Court to be far too soft--too namby-pamby, so to speak.
You guessed right: Scalia and Thomas. For them, an execution method is only unconstitutional when it is specifically intended to cause suffering. "Only if it is deliberately designed to inflict pain," in Thomas's words joined by Scalia. "Burning at the stake," "public dissection," "[dis]emboweling," "quartering"--only these and similarly "torturous modes of punishment" were intended to be and, thus, are unconstitutional according to those two.
The point is that although the conservative justices all voted for the same result in all of these 5 "cultural issues" cases, there are some clear differences among them. Just as there are among the liberals. Certainly, Scalia and Thomas seem to be in a category by themselves. (Along those same lines, again see Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008.) And if one were to sort out the justices from the most conservative to the most liberal--at least according to these "cultural issues" decisions, as well as the discrimination decisions examined previously--the spectrum might look like this:
Most Culturally Conservative....to
....Most Culturally Liberal
Scalia, Thomas..........Roberts, Alito.............Kennedy.......
The next post on "defining decisions" will look at "law and order."