(reply to the mail below)
... this doesn't work, empirically. If the issues that divide the Court are pre-structured, division might only be about things that impact at the margin. For example, when you say it is partisan, do you mean there are crazy tea party people up there? You want to see partisan: check out the A.M. radio dial. Go attend a Black Panthers meeting or visit with that crazy guy poaching on federal lands.
Just because there are disagreements about where the next incremental step is taken on this case or that one, doesn't make the participants "partisan." Indeed, one could argue that the professors have more of this problem, especially when considering this issue.
Also, this is true for political parties themselves. At issue is the sense of "partisan." I could easily argue that the rhetoric of John Kennedy was less partisan than that of other Democrats. Yet, if Kennedy's party endorsed his views and disagreed with the Republicans on a certain issue, whether this disagreement was "partisan" would be a function of the sense in play. If you mean only to say that partisan occurs when Democrats disagree with Republicans, then this is an innocent sense of the idea and would have no relevance to us. Because, when you say that someone is being "partisan" in another sense, you seem to say that he or she is behaving improperly with regard to propositions. Perhaps insincerely. Perhaps they won't look at facts or evidence. Perhaps they are insecure. On this more stronger account, it isn't clear at all that 5-4 decisions on pre-structured issues by 9 technocrats working within a trained activity really means that they are being "partisan."
Or maybe this is the answer: "court partisanship" is not like ordinary political partisanship, so that it isn't really the problem you thought it was.
(I'll catch your precedent argument in my next mail).
----- Original Message ----- Sent: Monday, May 12, 2014 9:16 PM Subject: Re: Trivia question re: partisan splits on the Court
The sensible charges of partisanship are not based on disagreement with the Court. They are based on the Court's own disagreements -- the persistent 5-4 lineups on ideological lines, the persistent refusal to accept as precedent decisions they disagree with, the experience that newly appointed Justices also refuse to accept precedents they don't like, and therefore the persistent knowledge that one more appointment by a President of one party or the other could change a lot of results that people care about.