The U.S. Supreme Court has always been riven and 5-4 rulings under Chief Justice John G. Roberts on issues including prayers at government meetings and federal recognition of same-sex marriage isn’t a new phenomenon, high-court scholar Laurence Tribe said in an interview.
Roberts’s predecessors heading the court managed to persuade their colleagues more often to hide those divisions, Tribe said in a Bloomberg Radio interview today. Tribe is a Harvard University law professor and author of “Uncertain Justice,” a book examining the work of the court under Roberts.
“The whole idea that 5-4 decisions are something unusual and new, and that they’re more and more political and partisan, is just a crock,” Tribe said. “The court has often in the past been divided 5-4, but it’s taken great care to hide that division from the public.”
Rifts existed as early as the tenure of Chief Justice John Marshall, who served from 1801 to 1835, Tribe said. They started becoming more public under Harlan Fiske Stone, a former dean of Columbia University law school, Tribe said. Stone was appointed by Democratic President Franklin D. Roosevelt and led the court from 1941 to 1946.
Marshall and some successors including Chief Justice Earl Warren -- whose court outlawed racial segregation in schools in the 1954 decision Brown v. Board of Education -- had both the leadership skills and desire to preserve a “unanimous face,” enabling the court to appear more united than it was, the professor said.
“That case would have come out 5-4 and maybe the other way, but for Earl Warren’s leadership,” Tribe said. Chief Justice William Howard Taft too, who’d earlier served as the 27th U.S. president, “managed to herd the cats as it were and make it look unanimous.”
Under Stone, the court started a trend of “letting it all hang out,” making public its divisions, Tribe said. “In a way, that’s less political, less politics involved in covering up differences of opinion.”
Despite perceptions to the contrary, the Roberts-led court is only marginally ahead in 5-4 decisions of the one led from 1986 to 2005 by William H. Rehnquist, a nominee of Republican President Ronald Reagan.
The Rehnquist court reached 5-4 rulings in 20 percent of its cases while Roberts’s court is at 20.1 percent, according to Tribe. Roberts was nominated to the high court by Republican President George W. Bush in 2005.
“Some of the most dramatic decisions that have gotten the court into the deepest trouble have been not 5-4s but overwhelming majorities,” he said, citing the 1857 ruling that a black man, Dred Scott, was not a person but property; a 7-2 ruling finding women have a constitutional right to an abortion in the 1973 case Roe v. Wade and the unanimous desegregation ruling in Brown.
Roberts and three other justices formed the minority last year when the high court struck down as unconstitutional the federal ban on same-sex marriage recognition. Those same members, joined by Associate Justice Anthony M. Kennedy, last month ruled that Greece, New York, town officials need not require invocations delivered before their monthly meetings be secular.
This year, with fewer divisive issues before the court, more than half the cases will be determined unanimously. According to SCOTUSblog, a Bloomberg Law-sponsored website that monitors the high court, 38 unanimous rulings have been issued as of June 18, with 75 cases to be decided in total.