The Supreme Court heard almost 70 cases this year. So far, 43 have been decided, and 11 of those, or about 25%, have been 5-4 or 5-3 decision – decided by the smallest possible margin.
Justice Ginsberg, however, thinks many more close decisions are to come:
“Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold,” said Ginsburg, who knows the votes in the some two dozen cases remaining at this point, though the public does not. The court’s term runs from October through June.
Some of the decisions yet to be announced include questions on partisan gerrymandering and whether the 2020 U.S. Census can ask a question about citizenship.
Though it may not seem like it, consensus among a majority of the Supremes is more common than not: about a third of cases result in a 9-0 opinion while over half result in a judgment with at least seven Justices in favor.
Since 2000, about a quarter of cases have been decided by a five-Justice majority. If Justice Ginsberg is right that many close decisions are still to come out, that could mean a statistically high number of close or partisan decisions this term. That’s not particularly surprising, as judges these days seem more willing than ever to be activists instead of impartial arbiters.
Remember, the Judiciary’s role is to interpret and rule on the law as it is written, regardless of the judge’s own political views – and regardless of whether the judge agrees with the law as written. The Judiciary’s job is to interpret the law, not rewrite it; it is the Legislature’s job to write (and rewrite) the law. Society seems to have largely forgotten this distinction – particularly members of the Senate who want to use confirmation hearings as a litmus test on a judge’s values rather than a review of the judge’s qualifications and ability to rule impartially. It shouldn’t matter which president nominates the judge, or which party holds the Senate majority, or what the candidate’s religious background is, or myriad other ancillary factors. Supreme Justices are appointed for life in large part so that they are not swayed by modern political currents. The proper role of the courts seems to have been forgotten in the modern era.
Surprisingly, Justice Ginsberg gave some props to Justice Kavanaugh, whose confirmation with the Supremes was hotly contested last fall.
“It was, I would say, the event of greatest consequence for the current term, and perhaps for many terms ahead,” Ginsburg said of Kennedy’s retirement. . . . And she credited Kavanaugh with making history “by bringing on board an all-female law clerk crew. Thanks to his selections, the court has this term for the first time ever, more women than men serving as law clerks,” she said.
The next round of opinions from the Supreme Court should be announced on Monday.