Monday, June 29, 2015

Update--Supremely Polarized: Partisanship Continues to Prevail

(We'll return to the Recaps--last week's marriage decision and then today's on lethal injection. But first, let's update last week's "Supremely Polarized" post.)
We've discussed and documented the politically partisan voting on the current Supreme Court quite a bit on New York Court Watcher. We did so in a lengthy series in 2012. And a few days ago--with all the decisions released since then, it seems like years--we surveyed the Justices' voting in some of the tough, controversial cases already decided this term. (See Supremely Polarized: Partisanship Continues to Prevail.)

Let's now update that survey. In reviewing the list of decisions and the repeated line-ups among the Justices, ask yourself again: are they voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?
Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)
Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
4 (Roberts + Scalia, Thomas, Alito)
Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
4 (Sotomayor + Ginsburg, Breyer, Kagan)
Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
4 ( Roberts + Scalia, Thomas, Alito)
Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + RobertsKennedy, Thomas, Alito)
4 (Kagan + Ginsburg, Breyer, Sotomayor)
In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
3 ( Scalia + Thomas, Alito)
So there are the most recent decisions of the Court--the tough ones, with controversial issues.

Note that every case, but one, was divided 5-4 along politically partisan lines, with Justice Kennedy as the deciding vote.
In the one exception, King v. Burwell, the Obamacare subsidies case, Chief Justice Roberts joined Kennedy and the liberals, and wrote the opinion for the 6 Justice majority. But even in that case, all 4 Democratic liberals voted together in the majority, and the 3 most conservative Republican Justices voted together in dissent.

As I asked at the outset: are the Justices voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?
With an occasional exception, the answer seems obvious.

For a complete list of of these decisions--combining those above with those listed in the previous post--see the post below this one. (By electronic magic, it will appear as if posted prior to this one!)