The percentage of votes cast as dissents in each judicial term has remained the same during the post-war period – 18.24 percent from 1946 to 2010, and 18.44 percent under today’s Chief Justice John Roberts.
Nor are dissents increasingly along partisan lines. In 1946, every justice was appointed by a Democratic president. Yet the court had the same rate of dissent that year as it has had under Chief Justice Roberts. One also has to question 5-4 decisions as a yardstick of contentiousness. For example, among four of the most contentious cases in American history (Dredd Scott v. Sanford, Korematsu v. United States, Miranda v. Arizona, and Roe v. Wade), none were decided 5-4.
It is not ideology that’s driving the dissent rate, but case selection. Justices throughout history have sought to hear difficult issues, the ones so tricky that they divide the courts of appeal. If an opinion is destined to be affirmed 9-0, the justices are unlikely to hear it.
What is more, litigants probably will not bring such an easy case in the first place. Lawyers, at least the smarter ones, understand what sort of argument a particular set of justices will entertain, and tailor their cases accordingly. Additionally, an increasingly litigious and polarized citizenry sends these cases up the judicial pipeline.
The result is that even if the next president were fortunate enough to appoint all nine Supreme Court justices, the court would keep on producing 5-4 opinions. The cases would simply address a different set of issues that divides the new crop of justices.
So what can the Supreme Court do about its declining approval rating, which is not merely a matter of image but of public confidence in the country’s judicial branch?