Ever since the nomination of Judge Robert Bork (and most recently with the nomination of Judge Sonia Sotomayor), our media and political discourse on the Supreme Court have become saturated with reports describing that institution in unabashedly political terms. References to the “conservative” bloc or a nominee's effect on the court's “ideological balance” treat the Supreme Court as an institution whose members decide cases not on the basis of faithful application to neutral principles but instead on the basis of competing partisan agendas where opportunities for logrolling, horse-trading and coalition building abound. As someone who had the honor of working at the Supreme Court for a year and who subsequently has appeared before it as a lawyer and has followed it as a law professor, I have found those characterizations terribly inaccurate and thoroughly destructive. A recent decision hopefully helps to dispel those poisonous misconceptions.
Arizona v. Gant concerned the circumstances under which the Constitution allowed law enforcement officers to conduct a warrantless search of an automobile in connection with an arrest. If the “conventional wisdom” about the “conservative” and “liberal” blocs on the Court were accurate, predicting the outcome should have been easy. The “conservative” justices (Roberts, Scalia, Thomas and Alito) would have upheld such searches as part of a pro-prosecution law-and-order agenda. The “liberal” justices (Stevens, Souter, Ginsburg and Breyer) would have found such searches unconstitutional as part of their unwavering effort to expand criminals' constitutional rights. Justice Kennedy, as the “swing” justice (magically moving into that role once Justice O'Connor retired) would have provided the critical vote.
The court defied that conventional wisdom. It sharply limited such searches in a 5-4 decision. Yet the opinions hardly broke down along partisan lines. Much to the chagrin of the law enforcement community, two justices in the supposedly conservative bloc (Scalia and Thomas) joined Justice Stevens' majority opinion trimming back the powers of police. Meanwhile, “liberal” Justice Breyer joined several of his “conservative” brethren to uphold such searches. The media-proclaimed “swing” justice (Kennedy) landed in dissent.
As careful Court observers appreciate, such decisions are nothing new. A significant chunk of the court's decisions each year are unanimous or only garner a single dissenting voice. Even in more closely contested cases, the justices' votes do not necessarily break down along partisan lines. This occurs in a variety of areas: criminal law, criminal procedure, tax law, administrative law, employment law, bankruptcy law, Native American law or international law—just to name a few of the myriad topics that occupy the court's agenda each year. Perhaps one of the most noteworthy recent examples was the opinion by Justice Scalia in the Hamdi v. Rumsfeld case, joined by Justice Stevens, that invoked historical lessons about the scope of habeas corpus to condemn the indefinite detention of enemy combatants.
Does this mean that the court's opinions never align along the poles described by the conventional wisdom? Of course not. Yet, Gant should give the media and the rest of us pause before succumbing to the temptation to view the court's decisions, including the controversial ones, through a partisan prism. The story of the court's work and the justices' decision-making process are far more complex. On a daily basis, the justices wrestle with complex cases that rarely yield easy answers, and their decisions defy facile political labels. At a time when the media and politicians are awash in promises of “post-partisan” rhetoric, they'd do well to accord that same treatment to the court.
Peter B. Rutledge is an associate professor of law at the University of Georgia School of Law. He clerked for U.S. Supreme Court Associate Justice Clarence Thomas during the October 1998 term.
