It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.Or is it the Chief Justice playing a moderating role and following through on the ideas about minimalist decisions that he expressed at his confirmation hearings?
Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.
So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.
Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice....It's interesting that this line is well-separated from the discussion of Justice Stevens behavior. Is he perhaps hoping for a President who will appoint a liberal Justice or 2? It would not help that agenda to display the spectacle of 4 liberal Justices eager to change everything if only they could get one more vote.
The court’s modulated tone may also stem from the fact that this is an election year....
Who's to say what these big patterns mean as cases are decided individually, by judges forming opinions mostly on their own? But Greenhouse's observations sharpen our view as we look to see the torrent of cases in the upcoming days. (And how strange it will be when we won't have Greenhouse to sharpen the picture for us anymore!)
ADDED: Jonathan Adler objects to the Greenhouse analysis.