Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable?
Why Split Decisions and Passionate Dissents Are Sometimes Better

By EDWARD LAZARUS
Thursday, May. 25, 2006

At a graduation speech this week, Chief Justice John Roberts extolled the virtues of unanimous Supreme Court opinions -- which, under Roberts's leadership, the Justices have produced at a surprising rate this term.

The numbers speak for themselves. This term, of the 44 cases decided as of last week, the justices disposed of 29 in unanimous opinions. At the same time last year, unanimous decisions numbered only 17.

Why is unanimity increasing? And, is Roberts right that this development ought to be welcomed?

What Does the Recent Move Toward Unanimity Mean?

Court commentators are engaged in a frenzy of speculation about whether peace has broken out on a court that has been badly fractured for decades.

Some attribute the sudden wave of agreeability to Roberts's influence. As these observers emphasize, unlike his predecessor, Chief Justice William Rehnquist, Roberts actively encourages extensive dialogue among the justices during the decision process, and places a premium on consensus.

Others, myself included, see the spate of unanimous rulings as largely ephemeral. Those in this camp attribute the current abundance of collegiality mainly to two factors:

First, this time of transition at the Court (two new justices have just arrived, after no new justices had arrived in 11 years) has created a short grace period, in which Justices just getting accustomed to each other may be especially gracious and collegial - preferring to join a brief, bare-bones opinion they can live with, than to raise side issues that can wait until later.

Second, the Court has yet to tackle the hardest and most potentially divisive cases of the year - which raise issues such as whether the ban on the so-called partial birth abortion procedure is constitutional.

Soon enough - perhaps not this year, but within the next year or two - the justices will very likely revert to their old "5 votes beats 4" way of deciding the most vexing legal issues of our time. Cases will raise divisive issues that cannot be avoided. And some justices will ultimately find collegiality's price too high to stomach.

Is Unanimity Inherently to Be Desired? How It Enhanced Some Key Court Decisions

This discussion, however, begs the most important question. Whatever the cause for the noticeable increase in unanimous decisions, is unanimity, in itself, a good thing?

The answer, I believe, is that unanimity is sometimes very valuable, yet the suppression of dissent can also come at a cost. And, moreover, unanimity is rarely as important as the analytical clarity and force supporting a Court decision.

There can be little argument that some of the most important Supreme Court decisions of the modern era were greatly enhanced by their unanimity.

Brown v. Board of Education, striking down the noxious doctrine of "separate but equal" and dealing a body blow to Jim Crow, is the most famous example. Chief Justice Earl Warren worked tirelessly to ensure the ruling would be unanimous. To achieve this, Warren had to simplify and water down his opinion. Otherwise, Justice Stanley Reed, a Kentuckian with no fondness for desegregation, would have balked.

But this was a price worth paying. In Brown, the Court was not merely desegregating public schools, it was dealing a body blow to the whole apartheid system that prevailed across the South. The moral force of Brown was undoubtedly enhanced by the fact every Justice, even those hailing from the South, stood behind the decision. Unanimity also somewhat diminished the political risks for a Court that would inevitably become the target for Southern outrage.

Other unanimous decisions reflect the same virtue. In Cooper v. Aaron, a unanimous Court rebuffed the State of Arkansas' attempts to frustrate Brown by foot-dragging on desegregation. Indeed, beyond their unanimity, the justices each signed the Cooper decision to emphasize their collective resolve to resist defiance of the Court's authority.

United States v. Nixon, the Watergate tapes case, is in the same vein. Requiring the President to turn over potentially incriminating tape recordings, despite his claim of Executive Privilege, raised a sharp interbranch conflict that called for a decision which all the justices could join, whatever their politics or party affiliations. And the Court delivered just that.

Turning to a different, earlier era, similar virtues can be ascribed to the many unanimous decisions of the Court under Chief Justice John Marshall. The early Court was deeply enmeshed in the enterprise of building a governmental structure that would last through the generations, and it well behooved the justices to rally unanimously behind foundational decisions -- many of which remain to this day keystones for the national constitutional edifice.

Dissents, Too, Have Been Profoundly Important in the Court's History

But before one gets too carried away with the notion of unanimity, it must also be emphasized that many of the Court's most important opinions have been dissents. And often, these dissents have been pointed and passionate - written in a spirit that was anything but collegial.

Consider the first Justice John Harlan's dissent in Plessy v. Ferguson - a dissent that ultimately found vindication in Brown. Had Plessy been unanimous, Brown's unanimity might have been harder to muster. Harlan's dissent showed that before the system crumbled, cracks already existed - and dissents often serve exactly this function, of giving haven to future Courts contemplating overruling a major precedent.

Consider, too, the brilliant free speech dissents of Louis Brandeis and Oliver Wendell Holmes - dissents now cited by Court majorities. Or consider Justice Hugo Black's dissent in Betts v. Brady, championing the right to counsel that became the law in Gideon v. Wainwright. Or Justice Harry A. Blackmun's dissent in Bowers v. Hardwick (also eventually vindicated in Lawrence v. Texas) championing the right of consenting gay adults to be free of government interference in their private lives.

The list is long, but the point is simple: Non-unanimity has served a vital function in leading the Court eventually to recognize and correct its past mistakes - including mistakes, like Plessy, of extraordinary, nation-shaping importance.

When one looks back over the Court's history, it is hard to avoid concluding that unanimity is not inherently to be desired, any more than split opinions are. The matter must be assessed case by case - not by the keeping of statistics. And generalizations are dangerous - for each landmark unanimous decision, can be matched by a landmark dissent.

On some particularly momentous occasions, unanimity is a big plus - so big, in fact, that it is worth compromising (as Warren did in Brown) some doctrinal clarity. But on other occasions -- probably many more, in fact -- unanimity would have been a significant problem.

The Real Issue: Not Lack of Unanimity, But Lack of Clarity or Authority

In the overwhelming majority of cases, the real issue is not unanimity or lack thereof. Instead, the Court runs into trouble either when it so fractured that its decisions leave the law confused and unsettled, or when it is so narrowly divided and politically polarized that the internal divisions erode the Court's status and authority.

The Rehnquist Court suffered from both of these problems to an extreme degree. It often produced decisions in which the justices were split 4-1-4 or 4-3-2. In these circumstances, there is no majority opinion for the Court, and litigants, lawyers, and scholars are left in a state of deep uncertainty about what the Court has actually ruled the law to be.

The many 5-4 decisions of the Rehnquist Court pose a different problem. In these cases, the problem was not uncertainty, but instead a troubling predictability. The 5-4 splits of the Rehnquist Court rarely varied. The clearly identified liberals lined up on one side and the clearly identified conservatives on the other. The proliferation of this ideological divide inevitably tended to suggest to the public that Supreme Court decisionmaking was more about political points of view than legal principle. Bush v. Gore, of course, was the culminating example of this phenomenon.

These are pitfalls well worth avoiding. And so, to the extent that Roberts's trumpeting of unanimous decisions reflects an instinct to avoid damaging splintering and factionalism, he is certainly pursuing a worthwhile goal.

But the reason it is worthwhile has little to do with unanimity per se. The best measure of success is not the number of justices in each majority opinion, but rather the depth of thought behind those opinions, and the clarity of guidance that the opinions give to the legal community and the nation at large. Except in the rarest of circumstances, dispensing justice well simply isn't a numbers game.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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