At Supreme Court, 5-to-4 Rulings Fade, but Why?

That's the title of Linda Greenhouse's latest Supreme Court Memo in today's New York Times.  LINK 

Where have all the 5-to-4 decisions gone?

And whatever happened to the “Kennedy Court”?

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases — the highest proportion in years — had been decided by margins of a single vote.

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld Kentucky’s method of execution by lethal injection by a vote of 7 to 2. It upheld Indiana’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

The Supreme Court index is here.