INSIDE A HOUSE DIVIDED: RECENT ALLIANCES ON THE UNITED STATES SUPREME COURT.

• Author: Pomerance, Benjamin
• Position: ARTICLES

1. INTRODUCTION

   When the United States Supreme Court reconvened at the beginning of October 2016, observers focused their attention primarily on who was not there and what the upcoming term was not going to be. (1) Justice Antonin Scalia, the longtime spokesperson for the Court's conservative wing, had passed away unexpectedly in February. (2) President Barack Obama's attempt to replace Scalia with Merrick Garland, the highly respected Chief Judge of the United States Court of Appeals for the District of Columbia Circuit and a purported judicial moderate, had resulted in a political standoff between the President and the Congress that ended with the Senate refusing to vote on the nominee. (3) Consequently, when the Court resumed operations in October, only eight justices sat on the nation's highest federal judicial bench. (4) Perhaps unsurprisingly, the nation's gaze seemed to center on the speculations about whom, if anyone, would ultimately be appointed and confirmed to take that crucial empty chair on this ideologically divided Court. (5)

   Further detracting from the general interest about the actual cases that the Court would hear during this term was the lack of a rampantly controversial constitutional dispute on the docket. (6) By comparison, recent terms had featured cases of general fascination on highly publicized matters such as same-sex marriage, (7) Obamacare, (8) abortion, (9) affirmative action, (10) the rights of the federal government in times of war, (11) life sentences for juvenile offenders, (12) and hotly contested forms of speech and expression. (13) Without any cases that provided such obvious bulletin-board material, and with the eight justices vowing to find ways to reach consensus on disputes to avoid any 4-4 deadlocks in their voting, the new term opened with a whisper rather than a roar among the Court-watching members of the media and the general public. (14)

   In the end, however, the term proved to be just as interesting--if not more so--as its more highly anticipated predecessors. (15) The Court contemplated plenty of highly controversial matters, rendering decisions with lasting national implications about such issues as religious liberty, (16) immigration, (17) racism in the American criminal justice system, (18) intellectual property protections, (19) the obligations of corporations, (20) and voting rights. (21) True to their promise, the justices avoided stalemates and reached consensus at a record rate, resulting in the Court handing down more unanimous decisions than had been seen from any term in recent memory. (22) The eight-member tribunal proved "unusual and awkward," in the words of Justice Samuel Alito, with justices often avoiding the type of ideological line-drawing that had characterized the Court in recent years and producing narrowly construed opinions that often seemed designed to avoid offending either side of the political aisle. (23) To see this previously highly vocal and polarized Court suddenly stepping gingerly felt out of place, much like an elephant walking on tiptoe to avoid trampling on a wasp's nest. (24) For most of the term, the justices trended toward case-specific determinations rather than sweeping constitutional proclamations--a shift that was, depending on one's perspective, either a refreshing return to the Court's original function or a dull abdication of the Court's expected duties. (25)

   Then President Donald Trump appointed Neil Gorsuch to the Supreme Court's bench on January 31, 2017, and the media attention once again returned to that white marble building on First Street. (26) Quickly, another heated battle erupted along political party lines. (27) Democrats in the Senate staged a filibuster against the nominee, who was widely viewed as a predictably conservative jurist with sentiments similar to Scalia's ideologies, which ended only when the Republican majority invoked the so-called "nuclear option" to break the filibuster with only fifty-one votes. (28) Finally, when the dust settled in early April, Gorsuch received his confirmation by a 54-45 margin, a partisan result that represented only three Democrats in the Senate casting their votes in Gorsuch's favor. (29)

   Gorsuch spent only a couple of months on the bench before the Court's term ended in June, and cast a vote in merely a handful of decisions. (30) Some of these cases proved to be among the more divisive disputes of the term. (31) With such a small sample size, however, it is too early to determine whether the Court will continue this past term's trend of seeking consensus and issuing narrow case-specific holdings, or whether Gorsuch's arrival will signal a return to the highly charged and deeply divided outcomes that have epitomized the Court in the past several years. (32) The answer to another looming question--the matter of whether Justice Anthony Kennedy, by far the least-predictable voter on the Court today, will retire--will certainly impact whether the Court's actions from this past term were an aberration or a new beginning as well. (33)

   Yet even amid a term of such unanimity, significant divisions emerged among the justices, both in their temporary eight-member format and in their full nine-member body. (34) With a bevy of cases on heavily contested topics of national interest already on the horizon for the Court's upcoming term--including President Trump's travel ban, cellphone privacy, labor-management clashes, and struggles between the rights of same-sex couples and religious organizations--one can logically expect these fissures within the Court to stretch to the extreme in the months ahead. (35)

   This article reveals these alliances and divisions that formed on the Court during this most recent term. By focusing solely on the Court's divided decisions--those cases in which at least one justice felt strongly enough about the outcome to publicly stand in opposition to his or her colleagues--this article examines the voting behaviors of the justices in these most hotly contested matters. In doing so, this article shows how frequently or infrequently each justice voted with each of his or her Supreme Court brethren during this past term, a result which demonstrates which justices appear to be most ideologically similar and which justices appear to be most ideologically opposed. From there, the article delves deeper into this data to highlight such topics as the frequency of each justice's appearance on the majority side of divided cases during the last term, voting trends in the most heavily contested matters of all--cases that ended with a 5-4 or a 5-3 vote--and individual cases that emerge as outliers in this data with voting results that defy the norm. Lastly, the article looks at some voting blocs that appeared during this past term, and examines what might lie ahead for the Court if these trends remain constant in the terms to come.

2. DIVIDED DECISIONS PROM THE OCTOBER 2016 COURT TERM

   i. Buck v. Davis (36)

   Duane Edward Buck was convicted for a double-murder. (37) During the penalty phase of his trial, the defense presented testimony from a clinical psychologist regarding Buck's risk of future dangerous behaviors. (38) On cross-examination, the prosecution elicited testimony from the psychologist that the race factor "black" did, in the psychologist's opinion, enhance the chance that a criminal defendant would act dangerously in the future. (39) Ultimately, the jury sentenced Buck to death. (40) Buck appealed, arguing that he had received ineffective assistance of counsel because his attorney had called an expert witness who testified that an individual who was black was scientifically more likely to cause future harm, thereby prejudicing the jury to vote in favor of sentencing him to die. (41)

   By a 6-2 margin, the Court held in Buck's favor. (42) Writing for the majority, Chief Justice John Roberts stated that Buck's case met all of the elements of ineffective assistance of counsel. (43) It was reasonably probable, Roberts wrote, that the jury would not have imposed the death penalty if Buck's attorney had not introduced the psychologist's testimony. (44) Under this rationale, the Court's majority decided that due to this testimony, Buck's race had played a significant role in the jury's decision to sentence him to die. (45) Such a situation, Roberts stated, was "a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are." (46)

   Justice Clarence Thomas, joined by Justice Samuel Alito, dissented. (47) Thomas argued that Buck failed to demonstrate that the actions of his lawyer at the trial had materially prejudiced his defense. (48) While introducing the clinical psychologist as an expert witness debatably may have been a risky trial strategy, Thomas determined that it was not a mistake so egregious as to influence the entire outcome of the jury's decision-making regarding Buck's sentence. (49) Given the heinous nature of the crime, Thomas wrote, a reasonable jury may have sentenced Buck to death even without the psychologist's testimony regarding race. (50) As the defense counsel's actions did not materially prejudice the outcome in the case, Thomas concluded that Buck had not met the standards of proving ineffective assistance of counsel. (51)

   ii. Pena-Rodriguez v. Colorado

   A Colorado trial court convicted Miguel Angel Pena-Rodriguez of harassment and unlawful sexual conduct. (52) Following the guilty verdict, two jurors told Pena-Rodriguez's attorney that a member of the jury had declared during the jury's deliberations that Pena-Rodriguez was likely guilty because Pena-Rodriguez was Hispanic "and Mexican men take whatever they want." (53) The same juror made similarly biased statements to the rest of the jury regarding two of Pena-Rodriguez's alibi witnesses, both of whom were Hispanic. (54) Pena-Rodriguez moved for a new trial, and was denied. (55) On appeal, however, the...