NPR had a story last night talking about how the narrative of a partisan Supreme Court is undermined by this week's decisions. On one level, it doesn't go remotely far enough. A much larger portion of Supreme Court decisions than is usually recognized are unanimous, and quite a number far along not-remotely-partisan lines, with lineups that would strike anyone who believes the narrative as unusual, but it's not that unusual for it to happen. There are certainly general trends, with the justices appointed by Democrats tending to vote together more often and the justices appointed by Republicans tending to vote together more often, but the lineups on issues that aren't political hot-button issues are often odd from that perspective. Some of the justices on both sides of the usual division are more textualist and inclined to read laws narrowly (Scalia, Thomas, Ginsburg, Sotomayor, formerly Souter), and some on both sides are more pragmatist and inclined to read laws more expansively (Roberts, Kennedy, Breyer, Alito, formerly Stevens, O'Connor). I remember a particular decision from a few years ago that was precisely on those lines. Then there are the free-speech decisions, where the justices don't line up along political lines at all. Earlier this month, one decision had Scalia, Thomas, and Kennedy aligned with Sotomayor and Kagan. The dissent was Roberts, Ginsburg, Breyer, and Alito.
The health care decision did have an interesting lineup, but what's most interesting about it is that there were actually several lineups on separate parts of the decision. Here are several issues and the lineup on each:
1. Is the individual mandate a tax? Yes: Roberts, Ginsburg, Breyer, Sotomayor, Kagan; No: Scalia, Kennedy, Thomas, Alito
2. Is the individual mandate, if conceived of as a federal law requiring people to buy health insurance, constitutional? No: Roberts, Scalia, Kennedy, Thomas, Alito; No: Ginsburg, Breyer, Sotomayor, Kagan [this one does fall according to one common partisan voting pattern]
3. Is the Medicaid expansion constitutional? Yes: same lineup as 1 above.
4. Is it constitutional for the federal government to penalize states for resisting the Medicaid expansion by taking away their previous Medicaid funding? No: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, Kagan; Yes: Ginsburg, Sotomayor
Update: Here are three further questions that I left out.
5. Does the Anti-Injunction Act apply (which would make it impossible to challenge the law until someone has to pay the penalty)? The Court was unanimous in saying that it does not apply.
6. Does the Anti-Injunction Law apply to all taxes, including de facto taxes declared not to be taxes by the legislature and president signing the tax into legislation? No: the #1 majority justices; Yes: the #1 dissenting justices
7. Does the entire health care law fall if it the mandate is unconstitutional? No answer on this question: the #1 majority; Yes: the #1 dissent
One thing that was particularly interesting is that on questions 1 and 3 the Chief Justice joined the four liberals, while swing voter Anthony Kennedy, who is usually more willing than the Chief to join those four, remained with the three conservatives in the dissent. Another was the fact that seven justices agreed on question 4. These two facts, I think especially the second, was what led the NPR reporter to notice that this decision really breaks from the narrative.
What struck me was how similar this is to what actually happened with one decision that the usual narrative takes to be one of the most bitter partisan divisions, decided for purely political reasons. That decision is 2000's Bush v. Gore, which had three questions that had different lineups.
1. Was the Florida Supreme Court's handling of the 2000 election compatible with the equal protection clause of the 14th Amendment? No: Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer; Yes: Stevens, Ginsburg
2. Is Dec 12 the date recounts need to be settled, and thus the best remedy is to go with the original vote count rather than allow recounts beyond Florida's final date? Yes: Rehnquist, O'Connor, Scalia, Kennedy, Thomas; No: Stevens, Souter, Ginsburg, Breyer (this was the part along typical partisan lines)
3. Did the Florida Supreme Court violate Florida law? No: Stevens, Souter, Ginsburg, Breyer; Yes: Rehnquist, Scalia, Kennedy; uncommitted: O'Connor, Kennedy
Seven justices agreed that there was an equal protection violation, and five agreed that Florida had set a date for recounts to be ended, a date that wasn't met. Four disagreed with the latter majority and wanted a recount to go beyond the date the majority had recognized as Florida's required date. But the important constitutional question of a violation of equal protection rights was supported by seven justices, and this is just about never recognized in those who put forward the usual narrative on this case. I've long thought that if anyone was being judicially activist here, it was the two justices who saw the constitutional problem but who refused to recognize Florida's deadline for recounts to be done by. But the conservatives and moderates usually instead get blamed for deciding the case based on their poltical views. It's an interesting case of two liberal justices recognizing that the conservatives had the constitutional question right, just like in the Medicaid part of the health care cases. It's refreshing to see a mainstream media reporter recognize it with the health care case. It would be nice if those who put forward the usual narrative would recognize something similar with cases like Bush v. Gore.