The Costs of Unanimity

October 14th, 2014

One of the emerging themes on the Roberts Court has been a paramount interest in unanimity and the avoidance of partisan 5-4 splits. But this agreement–or what Dahlia Lithwick has deemed a faux unanimity–is not without costs. Perhaps the most recent example of this dynamic has been the Court’s decision to deny certiorari on the same-sex marriage petitions. As I noted, at some point between August and September, something changed, and (at least) five Justices who voted to enter a stay turned into (at least) six Justices who denied certiorari. It’s very hard to believe that this change was motivated entirely by an evolved view of the constitutional law issues at play–especially coming from four Justices who recent dissented in Windsor. The votes I think reflect this broader pattern in the Court’s preference to display unanimity, when it is in fact fractured on the inside.

Some may think this is a good thing, because they agree with the Court’s refusal to accept the SSM petitions, which paved the way for gay marriages in many states. (Jeff Sutton probably does not agree, as this passes him an increasingly weighty burden that is more properly placed at One First Street). Others may think this is a good thing, because they don’t want the Court to be perceived as partisan, and issue a series of divided 5-4 decisions. Why shouldn’t the Justices pretend to agree even if they don’t?

I take neither position. If the Justices don’t agree, they shouldn’t vote together. These nine individuals were nominated to be Justices, and interpret the law as they saw it (I’ve watched the confirmation hearings–we heard this message ad nauseum). When Justices not-so-transparently start putting other motivations ahead of how they view the law, in a quixotic effort to maintain unanimity, the ability to profess unanimity becomes very hard to justify. As bizarre as it sounds, I would prefer a sharp 5-4 split where I know the Justices believe what they voted, and the pros and cons of a position can be laid bare, to a superficial 9-0 split, where it is painfully obvious the Justices don’t all agree, and they took some wishy-washy middle of the ground route that satisfies no one–McCullen v. Coakley for example.

Consider NFIB. I’m often asked on the book tour whether the Chief Justice believed in his vote. I answer with a qualified yes–I’m sure he believed his position was the right one, based on factors endogenous to the commerce and necessary and proper clauses. (We know this because he spent page after page explaining why this law is not actually a tax, and fails under commerce and necessary and proper). I also suspect he believes his decision to deny certiorari was also the right one, based on factors endogenous to the due process and equal protection clauses. (We know this because of his Windsor dissent not two years ago). But it’s hard to imagine that either opinion was not driven by his pledge to strive for unanimity. But, denying certiorari looks like a clear case of politicking, rather than a genuine change in the view of constitutional law. In my mind this is more injurious to the Court in the long-term, than the Justices dissenting from the denial of certiorari, if that is what they believe.

I think this approach sets a dangerous precedent going forward for the Roberts Court. Sooner rather than later the costs of unanimity will become clearer, as the Justices continue setting aside what they clearly see as the legal solution, by focusing on other factors, which create just as much of an appearance of partisanship.

Richard Wolf, who interviewed me about this topic last week, summarized my position into two quotes in the USA Today article titled.

Here are they are, with the complete context above:

But eventually, many on the right say, the court’s conservatives must stand and fight, if only to make clear their view of the law.

“If you’re a judge, you were put in the position to interpret the law as you see fit,” says Josh Blackman, a conservative legal blogger and assistant law professor at South Texas College of Law. “I think this is a very dangerous pattern. … You put aside your own jurisprudence. You put aside your own view of the law.” …

For that reason, much of the criticism has focused on Roberts, the former Reagan administration official and federal appeals judge who sided with the liberals on Obamacare.

“The chief justice has this preference for showing unanimity and not showing divisiveness,” Blackman said. “The pattern is always avoid a fractured 5-4 by capitulating. That doesn’t bode well for the future.”

I usually can’t explain myself fully in two quotes, so I hope this post explains my thoughts in depth.