Two Theories for Supreme Court Consensus: The Election or Posner Effect
Is Chief Justice John G. Roberts Jr. finally following through on his pledge in confirmation hearings to seek consensus on the court?
Last year at this time, the U.S. Supreme Court had issued 13 rulings decided by a 5-4 vote, but so far this year it has issued only one, the New York Times reports.
The article says liberals may be getting some modest concessions from conservatives who want to avoid more 5-to-4 decisions. Conservatives may be more willing to deal either because of criticisms of last year’s fractured rulings or because of an “election effect,” the story suggests.
Appeals Judge Richard Posner was among the critics. In his book, How Judges Think, Posner noted Roberts’ confirmation hearing promise. “The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’ reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings,” Posner wrote.
The times also noted the observation of Northwestern law professor Lee Epstein, who has found the court issues fewer 5-to-4 decisions during an election year than in the prior term. Epstein suggests the reason may be that the justices don’t want to become an issue in the election.
