So divided, yet often unanimous

Chief Justice Roberts seeks unanimity in whatever ways he can.

Chief Justice Roberts seeks unanimity in whatever ways he can.

WASHINGTON

Two very different group portraits of the Supreme Court emerged this term, one familiar and one unexpected.

The familiar was on display Monday in two 5-4 decisions that were split by angry divisions and seemed to advance a conservative agenda. But the more finely drawn portrait takes account of the 67 decisions in argued cases this term. The court was unanimous about two-thirds of the time, and those cases revealed signs of compromise and restraint, which many Supreme Court specialists said was a testament to the leadership of Chief Justice John G. Roberts Jr.

"The chief has done a remarkable job this term navigating divisions and dodging the most controversial of issues," said Lisa S. Blatt, a lawyer with Arnold & Porter who argues frequently before the court.

Roberts, who 59 years of age just completed his ninth term, does not get his way by backslapping or horse-trading but by writing savvy opinions, making strategic opinion assignments to the other justices and sometimes working to protect the Supreme Court from accusations that it is a political institution.

Roberts' handiwork was apparent this term in major rulings on abortion protests and cellphone searches, both unanimous decisions. His majority opinion striking down buffer zones around Massachusetts abortion clinics was much narrower than his earlier First Amendment jurisprudence would have suggested, narrow enough to attract the votes of all four liberal justices. And he wrote a muscular opinion for a unanimous court requiring the police to get warrants before they search the cellphones of people they arrest.

All of the justices are sensitive to the accusation that they are motivated by politics. The current set of nine justices is, for the first time in history, firmly divided along partisan lines, with all of the Republican appointees more conservative than all of the Democratic ones. Their efforts to find common ground may have been partly an attempt to counter the charge that they are, in Justice Stephen G. Breyer's words, "nine junior varsity politicians" motivated by partisan agendas better left to elected officials.

But the number of unanimous decisions — a record for the Roberts court and the highest percentage since at least 1953 — masked some powerful disagreements, as the justices often agreed only on the bottom line, as was true in the abortion protest and recess appointment cases.

What matters most in Supreme Court decisions is what legal principle commanded a majority, not which side won. Lower courts will apply those principles, and the divisions about the reasoning supporting decisions can be vital. They mattered so much to Justice Antonin Scalia that he all but created a new judicial genre — he wrote three furious concurrences.

The Roberts court's conservative majority has not retreated from several of its core concerns. It remains skeptical of campaign finance regulations, efforts to drive religion from public life and race-conscious decisionmaking by the government. It remains solicitous of corporate rights and of efforts to curb union power.

When the chief justice was in the majority in such cases, most decided by narrow margins, another side of him emerged. In all of them, he wrote or joined opinions that claimed to be modest extensions of existing law but may well portend wrenching change.

But the number of 5-4 splits dropped, to just 10. Of those, six featured the classic alignments, with Justice Anthony M. Kennedy joining either the court's four more liberal members or its four more conservative ones. He leaned right two-thirds of the time.

But in a great many cases the justices found ways to agree. This was the fourth term together for the nine current justices. Its newest members, Justices Sonia Sotomayor and Elena Kagan, have grown increasingly comfortable in their roles, and all of the justices seemed, mostly, eager to find common ground with their colleagues.

It did not hurt that the term lacked the huge and profoundly divisive cases that ended the last two terms. In June 2012, months before a presidential election, the court narrowly upheld the Affordable Care Act. In June 2013, the court issued one major ruling on same-sex marriage but kicked an even bigger question down the road.

The story of the current term was somewhat anticipated in a book published last year by three political scientists: Pamela C. Corley, Amy Steigerwalt and Artemus Ward. It was called The Puzzle of Unanimity: Consensus on the United States Supreme Court.

It is, after all, not obvious that the justices should ever all agree. The issues that reach them are complicated and usually susceptible to multiple plausible answers. Lower courts have almost always given varying answers. The justices themselves have differing judicial philosophies.

But the justices know that unanimous decisions have more force, which is why they worked hard to issue them in Brown vs. Board of Education, the 1954 school desegregation case, and United States vs. Nixon, the 1974 decision that hastened the end of the Nixon administration.

Lower courts are less likely to follow divided decisions. But, and here is the bad news for the current court, there are two ways to be divided. "While dissents are clearly detrimental to the authority of majority opinions, concurrences can be equally damaging," the Puzzle of Unanimity authors wrote. "In fact, if a decision of the court is accompanied by a concurrence that does not support the majority opinion, lower courts are less likely to comply with it."

While the court's level of agreement this term was authentically high, the numbers overstate the case.

"A lot of the unanimity is ersatz," said David A. Strauss, a law professor at the University of Chicago.

It is not every day, for instance, that you see a Supreme Court justice reading an angry concurrence from the bench, as Scalia did last week in the recess appointments case. (Even oral dissents are rare, issued perhaps four times a term.)

Scalia was similarly dismissive of the majority opinion in the unanimous abortion clinic buffer zone case issued the same day, although he concurred in the result.

"I prefer not to take part in the assembling of an apparent but specious unanimity," he wrote.

The majority opinion was written by Roberts and joined by the court's four liberals, an exceedingly unusual alignment. It was the same alignment that saved the Affordable Care Act in 2012.

Scalia was no happier about two other narrow Roberts opinions for the same coalition plus Kennedy, one avoiding a major decision on the scope of congressional power in a treaty case, the other rejecting a request to do away with securities fraud class actions.

Both times, Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. would have gone much bigger, and they refused to adopt the majority's reasoning in either case. But the vote counts nonetheless said the decisions were unanimous.

The court has the luxury, with very few exceptions, of picking the cases it will decide. It has studiously avoided accepting a Second Amendment case since it established an individual right to own guns in 2008 and applied it to the states in 2010. It flirted with hearing an abortion case this term but thought better of it.

All of this means that rates of agreement must be judged against the texture of the term. Almost 10 percent of the court's docket was made up of patent cases, for instance, and all of those decisions were unanimous.

"The higher unanimity rate might reflect an increase in cases with low ideological stakes," said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. "This term about 36 percent involved questions of rights and liberties, compared with 57 percent in the three previous terms."

Kennedy was most often in the majority, although not by much. He was rivaled by Roberts, which is common. But Kennedy was the only justice in the majority in all of the 5-4 decisions. The six that featured the classic ideological splits were telling.

Kennedy joined the court's conservative wing in major cases allowing more money in politics, more religion in official settings, religious liberty rights for corporations and limits on union power. He joined the court's liberals in limiting use of the death penalty and sustaining the use of a federal gun control law to curb so-called straw purchases.

The current term may have been a chance for the court to catch its breath, said Blatt, the lawyer with Arnold & Porter. "They are either resting up and saving their fire for all of the abortion, guns and gay marriage cases in the lower courts," she said, "or the cases this term were simply not as controversial as in the past two years."

"No one should confuse these outcomes with a sudden outbreak of Kumbaya fever at the court," said Samuel Issacharoff, a law professor at New York University. "The familiar lines of division were in evidence in all these cases. But, surprisingly, the court found a way to channel its core divisions into compromise holdings that allowed controversial cases to be settled rather than resolved."

© 2014 New York Times

So divided, yet often unanimous 07/03/14 [Last modified: Thursday, July 3, 2014 5:31pm]

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