Constitution Check: Is the Supreme Court’s new unanimity an illusion?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at the large number of unanimous Supreme Court decisions in the term that concluded in June, and if there is a lesson to be learned from the trend.

THE STATEMENTS AT ISSUE:

“If one looks at this court, it’s striking what [Chief Justice] John Roberts and his eight colleagues accomplished this year, roughly two-thirds of the cases decided unanimously. You would have to go back all the way to 1940 to find a similar time period in which the Justices so often agreed on things at the bottom line. And, sure, there were disagreements among reasoning and so on, but this is a striking example of the Chief Justice and his eight colleagues saying to the country, look, I’m looking at other branches of government. They’re not working quite that well. They’re very divisive. This is an area that’s worked pretty well, that worked really well, the colleagues on both sides of the aisle at the court coming to common agreement on the bottom line.”

– Neal Katyal, Washington, D.C., attorney and the government’s former top lawyer in the Supreme Court, in comments Tuesday night on the Newshour program on the Public Broadcasting System network.

“I prefer not to take part in the assembling of an apparent but specious unanimity.”

– Justice Antonin Scalia, in a comment in an opinion supporting the result, but lambasting the reasoning of the main opinion for the Supreme Court, in a case that did come out unanimously on the result.

WE CHECKED THE CONSTITUTION, AND…

There is only one Supreme Court; the Constitution says so. But that document says not a word about any need – or even any desire – for the members of that court to vote as one.   While some in the public, and even some scholars and other experts, tend to worry when the court divides 5-to-4 in big cases, and tend to think that unanimity means that the court is working well, that’s not necessarily so. Some of the Justices’ best work comes out of the crucible of disagreement.

Moreover, if the court does manage to agree, 9-to-0, on a case of significant controversy, there is a good chance that it was not really unanimous after all.   The vote count may accurately reflect the outcome – who won, and who lost, in a very simplistic way of speaking. But the court doesn’t get a great many cases that are easy to decide, so even those that can be counted as unanimous sometimes actually weren’t.

The close of the Justices’ term last Monday led to a number of media stories and reactions by commentators noting the frequency – the quite unusual frequency – of unanimous outcomes during those months on the bench. Three of the most important decisions to emerge were counted in the unanimity column. Looked at more closely, not one of them really was, and there is a lesson to be learned from that.

At the most basic level of the Supreme Court’s work, the outcome is in the form of what judges and lawyers call a “judgment.” That’s the who-won, who-lost result. It settles the dispute between the legal combatants, and the result is binding on them.   But does it mean that if the same issue that was at stake comes up again, with different combatants, the winner and loser still be the same?   Maybe not.

In short, results make law for the two sides in a case, but the reasons behind results create precedents for future use.   The reasoning in a court opinion is the justification for the outcome – the why of the win or loss.   The reasons that the Supreme Court gives in its opinion are what lower courts will use as their guide as they decide later cases. And, if the Supreme Court has been split several ways, lower court judges will work very hard to put their finger on the reasoning that comes closest to views that five Justices, a majority, probably would have found acceptable.

Take a closer look, then, at those three big “unanimous” decisions, each emerging late in the court’s term and contributing to the (superficial) assessment that the Justices had become far more agreeable with each other.

In perhaps the single most important ruling on the term, in terms of what it says about the Constitution in the modern age, was the decision requiring police – in most cases – to get a court-approved search warrant before they can search the contents of a cell phone they have taken from a suspect they have arrested.

The decision, with the main opinion written by Chief Justice John G. Roberts, Jr., broke completely from generations of established Fourth Amendment law that, when police find an object on a person they have arrested, they can take it and examine it to see if it has any evidence – and they could do so without a search warrant.

The Justices ruled – unanimously, in the end – in favor of requiring a warrant. It did so because it had become persuaded that cell phones, in this day and age, were repositories of vast amounts of very personal information, and the risk to privacy was just too great to leave access to it within the sole discretion of officers at a police station.

But one of the nine Justices, Samuel A. Alito, Jr., wrote a separate opinion, saying that he would reconsider the constitutional issue if Congress and state legislatures took the initiative to write new limitations on this new protection for cell phone privacy.   That lone opinion did not disturb the 9-to-0 outcome, but it did suggest that the ruling might not have gone quite as far as the main opinion had indicated, and it suggested that there might have to be an asterisk placed next to the main opinion’s rationale.

Another case came out unanimously, in favor of striking down a 35-foot “buffer zone” to keep anti-abortion demonstrators or “sidewalk counselors” away from abortion clinics and the patients who came and went. Again, Chief Justice wrote for the court, and all eight other Justices supported the outcome.

But Justice Antonin Scalia – quoted above, as saying he thought the unanimity in that decision was “specious” – wrote a fervent protest into a separate opinion, joined by two other Justices, and suggesting that the court should reconsider whether it is being entirely fair in restricting anti-abortion speech while not doing so equally for pro-abortion expression.   It put a crimp in the seeming unanimity.

And the third big “unanimous” decision resulted in the conclusion that President Obama did not have the constitutional authority to place three members on the National Labor Relations Board, under his power to make temporary appointments while the Senate is in recess – because the Senate, the court said, was not actually in recess at the time.

Justice Stephen G. Breyer wrote the main opinion, and the outcome got unanimous support. But, again, Justice Scalia saw things very much differently. The Breyer opinion salvaged much of the president’s appointment power, while the Scalia argument would have taken away almost all of it on the premise that the Senate would seldom be in the kind of recess during which Scalia would have allowed presidential appointments.   It thus was misleading, and in fact quite mistaken, when commentators suggested that the court had “rebuked” President Obama. Only the vote count looked like that.

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