Dellinger: Lack of 5-4 splits due to a term without hot topics

As we wait for the last of the Supreme Court decisions of the term to come down tomorrow (and perhaps Thursday too), Court-watchers have already been chatting about the absence of the sharply-divided, passionately-dissented, 5-4 opinions that defined the term that ended a year ago.

What is the reason for the bigger Court majorities this term? Is a shift in the Court’s collective ideology the cause? Has Chief Justice John G. Roberts, Jr. become more successful in his desire to bring greater consensus among the jurists?

No, said expert Supreme Court litigator Walter Dellinger this morning, speaking at a media briefing hosted by the National Chamber Litigation Center, the public policy law arm of the chamber of Commerce. There were fewer 5-4 splits this term, Dellinger said, because there were fewer hot-button issues before the Court like desegregation, abortion, and religion.

“I’m doubtful as to whether it’s a trend” toward consensus said Dellinger, who argued several cases before the Court this term, including the still pending cases of D.C. v. Heller and Exxon v. Baker. “I think there are fewer 5-4 cases on the docket.”

Dellinger said that when the Court tackled the hotly-debated last term, they normal minimalist approach to the Court’s decision making often gave way to wide, farther reaching opinions that spurred the sharp slits and passionate dissenting and concurring opinsions.

“I think the justices did more than they had to in the [school desegregation case],” he said, adding that he same approach was taken in the partial-birth abortion case. “None of those cases are up this term.”


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