The current Supreme Court has completed a historic seven terms and, despite internal frictions and speculation about retirement, the “Rehnquist court” continues to flex its muscles.
Chief Justice William H. Rehnquist makes his own impact felt mainly by exercising the prerogative of the senior justice in the majority to assign himself or a kindred colleague to write the opinion that goes into the lawbooks and governs future cases.
Over the past seven terms — the longest period without a vacancy since the court was increased to nine justices — the chief justice has voted with the majority in 476 of the 553 cases decided. He thereby had the last word in choosing an author to carry out the high court’s “province and duty to say what the law is.”
Fully 44.5 percent of the current court’s cases (246) were decided unanimously while votes on the other 307 split, 116 of them 5-4.
The four liberal justices haven’t fared well in the close votes. On the 116 appeals decided by a single vote since October 1994, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer were in the majority only 40 percent of the time. If court competition were a sport, those four wouldn’t make the playoffs.
If it were a beauty contest, Justice Anthony M. Kennedy would be Mr. Congeniality for being most agreeable. He voted with the majority 92.4 percent overall and a stunning 86 percent of split decisions.
Court analysts believed that some Rehnquist votes that appeared to go against the chief justice’s own conservative grain likely were cast for lost causes so that he, and not Justice Stevens, would decide who wrote for history.
When stakes were highest and the vote closest at 5-4, the one member of the current court whom both sides were likely to skip over most often was Justice Ginsburg.
She hasn’t written the opinion in any 5-4 case for more than five years.
Overall, Justice Ginsburg wrote only four of the 116 opinions that were decided by 5-4 vote since Stephen G. Breyer replaced Harry A. Blackmun on Aug. 3, 1994.
One of those four opinions was assigned to Justice Ginsburg when Justice Sandra Day O’Connor was the senior justice in the majority. Justice O’Connor could have named herself but has not done so on either occasion when she was senior.
In the only other case in which Justice O’Connor was senior justice in the majority of the present court — a 6-3 ruling on civil procedure Justice Ginsburg also wrote the opinion for the court.
Justice Ginsburg’s other two 5-4 assignments on the present court were during the 1994 term, her second as a justice. One case dealing with a motor fuel tax was assigned by the chief justice, and Justice John Paul Stevens assigned the other, which involved a worker injury.
Over the same period, the court’s most junior member, Justice Breyer, has written three 5-4 opinions assigned by the chief justice and eight assigned by Justice Stevens when the chief voted the other way.
Justice Clarence Thomas wrote 10 and Justices Souter and Antonin Scalia each had nine. Seven of those written by Justice Souter were assigned by Justice Stevens, while Justice Scalia’s nine 5-4 opinions for the current court all were assigned by his voting ally, the chief justice.
Justice Scalia also had the opportunity this term to assign one opinion to himself when the chief justice and Justices Stevens and O’Connor voted no. Justice Scalia startled court watchers by writing an opinion ruling that barred police use of a device that detected heat on walls and roof to indicate use of high-intensity lighting at an indoor marijuana farm.
When the vote is close on a major case, Chief Justice Rehnquist typically writes the opinion himself or turns to Justices Sandra Day O’Connor or Anthony M. Kennedy. Justice O’Connor has written 17 of the 116 cases with 5-4 votes by this court while Justice Kennedy authored 14 and is believed also to have written the unsigned per curiam opinion in Bush v. Gore.