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Thursday, May 25, 2006
Unanimity on the Court
Here is a webcast of the Chief Justice Roberts's recent graduation speech at Georgetown, in which he said -- among other things -- "[i]f it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case[.] . . . Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."
In a FindLaw column, Edward Lazarus asks if "Chief Justice Roberts is correct that unanimous opinions are inherently desirable," and contends that "split decisions and passionate dissents are sometimes better." What's more,
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.
I wonder -- Are there really any non-aesthetic reasons for caring that much about whether opinions are unanimous, or 6-3? I suppose we might think that unanimous opinions are better not in themselves, but because they correlate with, or indicate, "minimalist" decisions and rationales, which are better, even if they are handed down in 5-4 opinions.
On the other hand, the title of Cass Sunstein's op-ed in today's Los Angeles Times is "9-0 is better than 5-4." In the piece, Sunstein endorses the view -- which he associates with Justices O'Connor, Frankfurter, and now Roberts -- that narrow rulings (which are more likely to be unanimous, and vice versa) exhibit "humility" and "help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible."
It has always seemed to me, though, that the O'Connor / "one case at a time" / minimalist approach is not particularly humble, but instead reflects a desire to avoid ever relinquishing the Court's final say over the many issues that do and always will divide "societies that are both diverse and free." And, the Scalia-type criticisms of this approach might proceed less from a preference for "ambitious" (Sunstein's word) rulings, than from a desire for decisions and rationales that are, perhaps, more humble, precisely in that they do not presume that the every new factual situation should be regarded as presenting a new constitutional question that the Court is -- supremely -- able and authorized to resolve.
Sunstein is, it seems to me, entirely right to hold out, as a worthy goal for the Court, "to avoid taking a stand on the most controversial questions and [thereby to] show[] respect for people with reasonable competing views." I guess it is not clear to me that O'Connor's approach really does this. (As I have suggested elsewhere, though, Chief Justice Rehnquist's might have.)
Posted by Rick Garnett on May 25, 2006 at 02:42 PM in Constitutional thoughts | Permalink
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» Blog Round-Up - Monday, May 29th from SCOTUSblog
Here is an article by Tony Mauro titled, "High Court Clerks: Still White, Still Male." PrawsBlawg has this post on unanimity at the Court. On this C-SPAN page, you can access the video of Justice Roberts' commencement speech at Georgetown... [Read More]
Tracked on May 29, 2006 1:19:15 PM
Comments
It has always seemed to me, though, that the O'Connor / "one case at a time" / minimalist approach is not particularly humble, but instead reflects a desire to avoid ever relinquishing the Court's final say over the many issues that do and always will divide "societies that are both diverse and free." And, the Scalia-type criticisms of this approach might proceed less from a preference for "ambitious" rulings, than from a desire for decisions and rationales that are, perhaps, more humble, precisely in that they do not presume that the every new factual situation should be regarded as presenting a new constitutional question that the Court is -- supremely -- able and authorized to resolve.This is exactly the point that I would make - and that Scalia has made over and over again. Quoth Our Hero:
When I was in law school, I was a great enthusiast for [the] approach . . . of both writing and reading the "holding" of a decision narrowly, thereby leaving greater discretion to future courts. Over the years, however . . . I have found myself drawn more and more to the opposite view . . . The fact is that when we decide a case on the basis of what we have come to call the "totality of the circumstances" test, it is not we who will be "closing in on the law" in the foreseeable future, but rather thirteen different courts of appeals -- or, if it is a federal issue that can arise in state court litigation as well, thirteen different courts of appeals and fifty state supreme courts. To adopt such an approach, in other words, is effectively to conclude that uniformity is not a particularly important objective with respect to the legal question at issue...(Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178-80).I had always thought that the common-law approach had at least one thing to be said for it: it was the course of judicial restraint, "making" as little law as possible in order to decide the case at hand. I have come to doubt whether that is true. For when, in writing for the majority of the Court, I adopt a general rule, and say, "This is the basis of our decision," I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle. In the real world of appellate judging, it displays more judicial restraint to adopt such a course than to announce that, "on balance," we think the law was violated here -- leaving ourselves free to say in the next case that, "on balance," it was not. It is a commonplace that the one effective check upon arbitrary judges is criticism by the bar and the academy. But it is no more possible to demonstrate the inconsistency of two opinions based upon a "totality of the circumstances" test than it is to demonstrate the inconsistency of two jury verdicts. Only by announcing rules do we hedge ourselves in.
Posted by: Simon | May 25, 2006 4:32:08 PM
I'm not sure I agree with the premise of this post: that narrow rulings are more likely to be unanimous. Sometimes unanimous rulings are extremely broad (see Whren v. United States in the Fourth Amendment context). What makes for unanimity in a particular situation likely depends simply on what rule the justices think is expedient, and that can often occur with a broad rule. I'm also not sure that empirically narrow rules will more often coincide with a unanimous court than broad rules. Rather, unanimous courts are more a testament to the Chief Justice's negotiating abilities: his ability to persuade those who are more inclined to rule narrowly to occasionally rule broadly, and vice versa.
Posted by: Dave | May 26, 2006 8:08:56 AM
IMHO, there has been a real problem with this Court deciding a narrow issue and sending related, significant issues necessary for the resolution of the case back to the court of appeals. They have the whole case before them, they have a pretty good idea of how they want it to come out, why don't they just go ahead and decide it? If it's because the agreement among the majority is only in principle, that is, they expect they majority to shatter if their holding is applied to a particular set of facts, then maybe their holding just isn't that useful. I mean, maybe Justice Ginsberg was satisfied with what she did in Booker/Fan-Fan, but is anyone else? The same is true with the detainee cases -- why do we need Hamdan now, the issue should have been decided last time around.
Posted by: r.friedman | May 29, 2006 5:42:47 PM
If it's because the agreement among the majority is only in principle, that is, they expect they majority to shatter if their holding is applied to a particular set of facts, then maybe their holding just isn't that useful . . . Ginsberg was satisfied with what she did in Booker/Fan-Fan, but is anyone else? The same is true with the detainee cases -- why do we need Hamdan now, the issue should have been decided last time around.True, but on the assumption that a narrow ruling was necessary to hold the majority together, is it really worse to have a narrowly-drawn ruling with a solid majority than to shoot for the whole enchilada and end up with a train wreck of a plurality, a la McConnell?
Posted by: Simon | May 29, 2006 5:48:35 PM
