The surprising scale of Judge Jill Karofsky’s triumph in April’s election may well immunize her victory from legal challenges spawned by the bizarre circumstances of the voting. Thus, it does not seem premature to speculate on the impact of her arrival among the justices for the 2020-21 term. The likelihood that her opinions will differ dramatically from those of her electoral opponent, Justice Daniel Kelly, invites predictions regarding the justices’ voting in a variety of cases, including their most contentious—those decided by 4-3 votes, which is our topic for today.
In the aftermath of the election, the following hypothesis appears plausible: conservative justices will display greater “bloc cohesion” in 2020-21 than they have in the current term.
To understand why this is probable, consider that the court has filed eight 4-3 decisions through mid-April, and that the conservatives have prevailed in 75% of them. This indicates that not only can they generally get the result that they desire, but also that they can do so while one of their number dissents. Next term, with only four conservatives on the court, they will either have to accept losing a larger share of 4-3 decisions or repress their inclination to compose dissents in such cases—that is, embrace stricter bloc cohesion.
It might not prove painful to forgo a dissent that focuses less on issues actually briefed by the parties and more on broader, longstanding concerns. However, should a justice be pondering a dissent aimed more directly at the issues debated before the court, he/she may feel the weight of a dilemma. Depending on the arguments in a conservative’s dissent, it would produce either a victory for the liberals or, at best, a fractured decision—neither outcome palatable to the author. But would that justice feel more comfortable if the imperative of conservative bloc cohesion scuttled a contemplated dissent addressing a principle of consequence to the author manqué? As 4-3 decisions are filed next term, we should get a sense as to the relative force of these competing constraints.
Here, it is important to observe that the tendency to dissent is not distributed equally among the conservative justices. The court’s two most entrenched conservatives, Justices Roggensack and Ziegler, have been virtually interchangeable in their voting this term—siding with each other 96% of the time—and almost always in the majority.[1] After more than a decade together on the court, neither one must harbor anxiety about the other’s views on any issue. But how steadfast an ally in close votes is each of the remaining three conservatives: Justices Kelly, R.G. Bradley, and Hagedorn? As shown in the following table, one of the three has lined up a good deal more often than the others with Justices Roggensack and Ziegler.
Thus, if the voting so far this term is any guide, the departure of Justice Kelly will deprive Justices Roggensack and Ziegler of the colleague on whom they could rely most assuredly, leaving them with two justices who, though clearly in the conservative camp, have been more inclined to go their own ways.
Now let’s narrow our gaze to 4-3 decisions, where these dissents are felt most acutely. Justice Kelly has not dissented in any of the eight 4-3 decisions to date; Justice Ziegler has done so only once, and Justice Roggensack only twice. But in these same cases, Justice R.G. Bradley has dissented five times and Justice Hagedorn four times. The conservatives preserved their majority in six of the eight cases even though Justices Bradley and Hagedorn each dissented in three of them—because they never did so in the same case. Next term, this “margin of error” for the conservatives will have disappeared, as a dissent by any one of them would likely turn a 4-3 victory into a 4-3 loss or a fractured decision.
This, of course, assumes bloc cohesion among the liberals—Justices A.W. Bradley, Dallet, and Karofsky—for if one of the three parts company with the other two in contentious cases next year, we will revert to the current situation, where the conservatives can afford to find one of their number straying from the fold. However, Justices A.W. Bradley and Dallet have voted together in every case so far this year, and it does not seem fanciful to anticipate that Justice Karofsky will join them most of the time in 2020-21. If this happens, we should not be surprised to see a sharp drop in the number of dissents filed by Justices R.G. Bradley and Hagedorn, especially in 4-3 decisions.
[1] Of the 24 votes that Justices Roggensack and Ziegler cast on the same side, 23 (96%) were as part of a majority.
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