On High Court's Big Issues, 5-4 Split Is the Rule.

[elleng]

In earlier times, the chief justice might have worked hard for unanimity in a ruling as potentially transformative as the campaign spending decision appears to be. Chief Justice Earl Warren assiduously courted Justice Stanley Reed of Kentucky to ensure that there would be no dissent -- much less from a Southerner -- to the Brown v. Board of Education decision that outlawed segregation in public schools.

Such unanimity is unthinkable on the big issues of the day on the current court, but ideology was not then the order of the day in selecting justices.

Even at the time of Roe v. Wade in 1973, decided 37 years minus one day before the campaign finance case, seven justices formed the majority that declared a woman has a constitutional right to an abortion. Of those seven, five were appointed by Republican presidents, including three by Richard Nixon.

The two dissenters were Justices Byron White, named to the bench by John F. Kennedy, and William Rehnquist, another Nixon appointee.

Roe v. Wade is the prime example put forward by conservatives of a judicial power grab, taking away from the states the power to decide for themselves what limits to put on abortion.

But the reaction to Roe and the liberal outcry that followed Thursday's decision show that there is one salient feature of accusations of judicial activism. They come from the losing side.

http://www.nytimes.com/aponline/2010/01/23/us/politics/AP-US-Supreme-Court-Conservatives-vs-Liberals.html

[FBaggins]

1. There's often a reason for that.

Activists on both sides intentionally avoid letting their cases get to the USSC when they know the majority opposes them. This avoids setting up a precedent against them.

You can see that in any number of issues. If they lose at the appellate level, they decline to appeal to the Supreme Court... hoping to hold this issue over until a more favorable course appears.

This means that any number of issues pile up, but ONLY until they think they have five votes on their side.