Kevin Drum
notes that today's gun ruling was 5-4. "This is the latest in a whole bunch of high-profile 5-4 Supreme Court rulings this term," he says. "I wonder if that means that the composition of the court will be an even bigger campaign issue than it otherwise would be? My guess is yes."One would think. But
The New Republic's Jeffrey Rosen
says Roberts has actually been an incredibly conciliatory Chief Justice:
As of this writing, nearly 40 percent of this term's decisions were unanimous, and only 14 percent were decided by 5-4 splits. Even more tellingly, some of the term's more controversial decisions--including those involving lethal injections, voter identification laws, federal efforts to curb child pornography, and Iraqi detentions--were unanimous or decided by lopsided, bipartisan majorities. True, there have been a handful of high-profile 5-4 decisions along familiar ideological lines, such as the case extending the writ of habeas corpus to inmates at Guantanamo Bay--and there may well be more in the final weeks of the term--but they have been the exception, not the rule.
There's a crucial ambiguity there, however, as the implication is that Roberts has been more moderate, but the forces and crucial cases don't suggest that at all. Rather, he's been a smarter conservative.Rosen credits two trends for the relative unity. The first is that Roberts has been occasionally good about letting moderate justices write the prevailing opinion, which convinces the liberal justices to sign on so they can influence the law. A Scalia-written opinion means a 5-4 majority. A Kennedy-written opinion may mean a 7-2 majority. But the bigger one is simple case selection: "Roberts has also promoted unanimity by encouraging the Court to hear more business cases...which represent about 45 percent of the court's docket this year."The consensus among observers I know is that Roberts is actually pretty hard-right, and when the chips have been down on traditionally contentious issues -- think school integration,
Habeas Corpus, and guns -- Roberts has showed himself to be intensely conservative. But almost all of the justices are inclined to side with business. Breyer and Ginsburg may be on the liberal wing of the Court, but on business issues, they've always been relatively conservative, which is why the Chamber of Commerce enthusiastically endorsed both of their nominations. Roberts, who came from a
business law background has oriented the Court more towards cases the Chamber of Commerce cares about. And the Chamber has not been disappointed. As Kiplinger concluded in an
analysis last year, the Roberts Court has thus proved "good for business." And good for business meant, in this context, weakening anti-trust laws, constraining consumers' rights to sue, sharply limiting pay discrimination claims, and limiting awards for corporate whistleblowers. My sense from friends who follow this stuff is that the outcome may indeed have been more consensus on the Court, but that shouldn't be confused with moderation in its rulings or a centrist shift in its center of gravity. Rather, Roberts has discovered a sector of the Court's work where conservatism has a more natural majority.
Related: For more on the Supreme Court's turn towards business, see Jefrrey Rosen's (yeah, him again) article
Supreme Court Inc. It's an important, and impressively comprehensive, piece.
(Image used under a Creative Commons license from Mindgutter.) 
