A Kinder, Gentler Court?

When the Supreme Court convened on the first Monday in October, observers predicted that there were so many "polarizing" cases on the docket that one could expect a repeat of the fractious October 2006 Term with its many 5-4 decisions.  Although the Court divided closely in eleven cases, this was far fewer than the 23 the previous year. In some instances one or more of the moderate justices joined the conservative bloc, and the opposite happened as well. As Tony Mauro of the Legal Times wrote, it seemed "that something was different, and calmer, about this Term compared to the previous one, when the justices divided angrily over abortion, race and religion, and the Court seemed ready to break out in fistfights."

Some court-watchers attributed this to greater confidence on the part of Chief Justice John Roberts, who was able to secure consensus on more issues by having narrowly focused opinions.  Justice Scalia, on a book tour, told a reporter that with a chief justice "as persuasive as Roberts is, you want to go along." In general, justices on both ends of the spectrum seemed eager to avoid the touchy subjects. Of course, one could not have a Term in which Antonin Scalia did not fulminate at least once, as he did in the Guantanamo detainees case, or in which Anthony Kennedy did not emote, as he did in a death penalty decision. But Roberts did seem to be having more success in what he claimed would be his goal when nominated, to lessen the strife and divisiveness on the Court.

The fact that the docket held no cases on abortion, race, or religion also helped, and even some of the more controversial cases did not look quite so aberrational when viewed in the context of the Court's precedents. Two of the closely divided cases, one of the detainees and the other on the death penalty, both relied on the Court's previous rulings. The detainee case, as Justice Souter noted in a concurrence, was "no bolt out of the blue."  Even the highly publicized gun decision was not radical, and Justice Scalia, long known as an advocate of gun ownership, toned down the opinion to assure the other justices that gun regulations could still be enforced. Finally, the Court handed down written decisions in only 67 cases, the fewest since the 1953-54 Term.

One should not assume that the ideological divides on the Court have all been bridged, because they have not.  Rather, as Christopher Eisgruber, a scholar at Princeton noted, not every case turns on ideology.  Many cases are questions of process and precedent, and in these areas there is likely to be more agreement between liberal and conservative approaches.  The depth of feeling could certainly be seen in the cases that mattered most to individual justices.  Nonetheless, even if an era of good feeling has not arrived, the October 2007 Term showed a greater flexibility and willingness to find middle ground that in the past several terms.

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