The United States Supreme Court traditionally closes up shop for the summer at the end of June, releasing a spate of opinions and heralding a season that has become a Super Bowl for law nerds. To some court-watchers, this event pits two staunch rivals against one another. There is the offensive-minded blue team (Justices Breyer, Ginsburg, Kagan, and Sotomayor) against the defensive juggernaut decked out in red (Justices Alito, Roberts, Scalia and Thomas) with a two-way player (Justice Kennedy) wavering between the two squads.
Every year observers deconstruct the slate of opinions to analyze which side “won”—and the current term is no exception. Many pundits have emphasized the blue team’s victories in the same-sex marriage and Affordable Care Act cases with Justice Kennedy donning blue for both opinions, and even Justice Roberts switching jerseys to support the health care law. Fans of the red team have decried Roberts’s alleged turncoat behavior by writing the majority opinion in the health care case; supporters of the jurists in blue have expressed anger at the dissents authored by Roberts and Scalia in the same-sex marriage opinion. Justice Scalia, in particular, has provoked the ire of the left for his tart tongue in criticizing the majority’s recognition of a fundamental right to marry for same-sex couples.
Yet viewing the Supreme Court in terms of two teams, especially blue and red ones, is too simplistic. Political leanings undoubtedly play a role. But I think judicial philosophy and personal idiosyncrasies play an equally large, if not larger one.
Kennedy often votes with the more conservative wing, and just today sided in the majority -- along with Alito, Roberts, Scalia, and Thomas -- in rejecting an Eighth Amendment challenge to Oklahoma’s controversial lethal injection procedure in implementing the death penalty. But Kennedy has consistently and boldly backed the left on gay rights issues. Not only did he author the Court’s decision two years ago that overturned a federal law that deprived benefits to same-sex couples, but he also wrote the landmark 2003 opinion that struck down a Texas anti-sodomy law. Many prognosticators anticipated last week’s result in the marriage case given Kennedy’s steadfast support for the dignity and autonomy of same-sex couples. And his impassioned majority opinion did not disappoint many progressive observers.
Consider Roberts too. His opinions on health care and same-sex marriage may seem inconsistent from the perspective of politics: alignment with the left on the former, firm inclusion with the right on the latter. Yet, as several commentators have noted, these approaches can be reconciled when seen through the lens of Justice Roberts’s belief in judicial restraint. Ruling in favor the Affordable Care Act showed faith in the federal legislative process, just as chiding the Supreme Court for creating a right to same-sex marriage reflected the Chief Justice’s vision that the issue should be determined by the people through their elected representatives, not by judges.
Then there’s Scalia. His dissent in the same-sex marriage opinion is by no means the first--nor likely the last--of his blistering dissents. Contrary to popular belief, he does not always reserve them for left-leaning majority opinions. For example, in a 2011 case the Supreme Court ruled that a dying victim’s out of court statement to a police officer could be used against a criminal defendant. In his dissent, Scalia championed the right of criminal defendants to confront their accusers in open court and chastised the majority for turning the Court into the “obfuscator of last resort.”
Scalia seems to produce his most strident dissents when he perceives the majority to be drifting from what he considers the result mandated by the historical record. In a 1996 case holding that federal courts should recognize a “privilege” to prevent the admission of evidence about confidential communications between a licensed social worker and a patient, Scalia demeaned the whole profession of psychotherapy and insisted that its adherents do not deserve exalted protection: “When is it, one must wonder, that the psychotherapist came to play such an indispensable role in the maintenance of the citizenry's mental health? For most of history, men and women have worked out their difficulties by talking to, inter alios, parents, siblings, best friends and bartenders--none of whom was awarded a privilege against testifying in court.”
As these examples suggest, many of the Supreme Court justices have personal idiosyncrasies and jurisprudential philosophies that sometimes generate case outcomes that clash with their general political inclinations. It is tempting to think of the Court as composed of firm red and blue teams, but the colors are more nuanced, the results more unpredictable, than that characterization would imply.
Daniel S. Medwed, a legal analyst for WGBH News, is a professor of law at Northeastern University.