A. E. Dick Howard - Virginia Law Review

The Changing Face of the Supreme Court

Thinking about such things as the justices, their clerks, and the Court’s relationships with the media and politics, I find that much has changed since my days with Justice Black. A justice from the Warren Court would find much that is familiar, but there would be surprises, too. Some of the changes he would observe could be fairly described as paradoxical.

Today’s justices are more diverse than were those of the Warren era. Yet, in some respects, the Court’s members are more elite and homogeneous than were those of fifty years ago. A quick glance at the modern justices’ credentials and geographic backgrounds brings home the point. Moreover, the current Court is presented with thousands more petitions than was the Warren Court. While the number of clerks available to assist with the caseload has grown substantially, today’s high bench issues fewer opinions on the merits. The Warren Court faced criticism for its living constitutionalism and doing politics; today’s Court faces even lower approval ratings and seems to be more politically and ideologically driven and divided than ever.

Changes at the Court naturally invite musing on theories to identify the causes and effects. A simple explanation may be that external politics have affected the inner workings of the institution. Perhaps life at the Court is different in good part because politics outside the Court have become more polarized. The increased diversity on the bench, a decline in consensus, the combative nomination process, the hiring of clerks from ideologically compatible “feeder judges,” and media portrayals of the Court all carry political overtones. The Court issues opinions many of which fundamentally affect the lives of American citizens. It may also be that these same citizens—how they live, how they think, for whom they vote—have fundamentally altered the Court itself.

Ten Things the 2012–13 Term Tells Us About the Roberts Court

During the 2012–13 Term, the Court decided seventy-eight cases on the merits, an increase from the previous Term (when there were seventy-five such opinions), but still far fewer decisions than some years earlier. Almost half (49%) of the 2012–13 Term’s cases were unanimous. Harmony was not, however, the Court’s predominant mood. Nearly a third of the cases (29%) were decided by votes of 5-4—an increase of 9% from the previous Term. Another 8% of cases were decided 6-3. As has been true in previous Terms, Justice Kennedy was most often in the majority (91% of all cases and 83% in divided cases). The figures on agreement among various Justices are a bit more surprising. In prior years, we had seen the highest rate of agreement to be among pairs of Justices on the Court’s right. In the 2012–13 Term, however, it was the trio of female Justices—Ginsburg, Sotomayor, and Kagan—who most often agreed. Justice Kagan agreed with her sister Justices in 96% of cases, and Sotomayor and Ginsburg were in agreement in 94% of cases.

What does the 2012–13 Term tell us about the Roberts Court? No one Term can reveal the whole story, of course. But I venture a few observations. I style them as “Ten Things the 2012–13 Term Tells Us About the Roberts Court.”

Out of Infancy: The Roberts Court at Seven

Seven years can see the Supreme Court travel a long way. In 1935 the Court invalidated the National Industrial Recovery Act, a centerpiece of the New Deal’s efforts to combat the Depression. This was but one of a series of cases in which the Court sought to entrench old notions about government’s role in regulating the nation’s economy. Seven years later, the Court (seven of whose members had been appointed since 1935), decided Wickard v. Filburn, upholding the Agricultural Adjustment Act’s penalty imposed on a farmer who grew wheat for consumption on his own farm. In seven years, the Court had gone from close judicial oversight of Congress’s decisions about the national economy to something close to complete deference.