Supreme Court May Never Be Unanimous Again

(Bloomberg) —

Does judicial decorum matter? The question comes to mind after Justice Samuel Alito’s impassioned dissent this week from an order handed down by the U.S. Supreme Court almost six weeks ago.

Yes, you read that right. On March 28, the justices issued a stay of execution in Murphy v. Collier, a case involving the death penalty. On Monday, Alito issued his dissent, which was joined by Justices Clarence Thomas and Neil Gorsuch. (I’ve written about this case before, so we’ll not get into the facts here.) Angry justices taking their swipes at the majority is hardly uncommon, but there’s something peculiar about filing a dissent a month and a half after the actual decision. Peculiar — and also antithetical to the dignity that some of us still believe should mark the doing of the public’s business.

The occasion for Alito’s dissent was the Supreme Court’s order, also on Monday, denying review in a separate death-penalty case, Price v. Dunn. As if Alito’s written dissent in a 6-week-old case was not enough, Thomas also chose this as the moment to explain, in an opinion joined by Alito and Gorsuch, why the justices were right not to hear Price’s appeal the first time it reached them — which, for the record, was back in February. Meanwhile, Justice Brett Kavanaugh, joined by Chief Justice John Roberts, wrote to explain why he voted differently in two death-penalty cases, only one of which was still before the court.

Having trouble keeping keep up here? So is pretty much everybody else. Court observers found the flurry of opinions about past decisions “highly unusual.” The New York Times interpreted the sniping to mean “that feelings remain raw on a court that is increasingly divided over capital cases.” The Washington Post observed that the back-and-forth “exposed a bitter rift among members of the court on one of the most emotional and irreversible decisions they make.”

This isn’t the language normally used to describe a solemn, thoughtful branch of government whose decisions are entitled to respect due to the nature of the deliberative process that creates them. This is the language of chaos.

Now, don’t get me wrong. I’m not saying that the Supreme Court must constantly achieve consensus in order to maintain the popular respect so necessary to its work. Nevertheless, a quarrelsome court is not just indecorous — at some point, the justices fail the test of collegiality.

Actually, for about its first 140 years, the Supreme Court largely met this test. Unanimity was the preferred method of decision. Separate dissents or concurrences were rare. Then the New Deal happened, and during the 1930s, dissents occurred more frequently. And beginning in 1941, under the leadership (if that is the word) of freshly minted Chief Justice Harlan Fiske Stone, the tradition of consensus that had been characteristic of the Supreme Court for more than a century crumbled. On Stone’s watch, decisions featuring separate opinions became the norm; unanimity became the rarity. The justices have never swung back the other way.

In a thoughtful 2007 article, the legal scholar Todd Henderson argued that separate opinions tend to proliferate when their proliferation will tend to maximize the Supreme Court’s power. Certainly the New Deal dissents helped the court’s reputation among liberals. Even as the majority stuck down one progressive reform after another, leading to an outcry on the left, the dissenters signaled to activists that they had friends on the high bench. In time and with new appointments, the dissents implied, judicial attitude toward government regulation might change.

And if you object that these dissenting signals helped create today’s court-centered view of governance, in which every vacancy takes on outsize importance, you’re probably correct. But we shouldn’t leap from that concern to an assumption that the modern court’s consistent fracturing and sniping harms its legitimacy. As my Bloomberg Opinion colleague Cass Sunstein pointed out in a 2015 article in the Cornell Law Review, the data is too scant to support the hypothesis that the court’s opinions are better received when they are unanimous.

As I said, don’t get me wrong. I think the search for consensus matters. A controversial article in the Harvard Law Review in 1959 argued that the justices would craft better opinions (and, implicitly, write fewer dissents) if they spent less time on cases not worthy of review and more in collective deliberation and reflection about the handful of truly important ones. The theory was thinly argued, a weakness that led to some scathing responses, but its central claim — that the court would do better work if its members spent more time in deliberation — is not entirely wrong.

It’s been a long while since my own days as a Supreme Court law clerk, but from what I’m told, things haven’t changed much. Justice Louis Brandeis’ famous dictum — “We do our own work” — can be a curse as much as a blessing. With the justices spending most of their time in separate chambers surrounded by admiring law clerks, and with some at both ends of the spectrum all but openly writing for their fan bases, there’s little incentive to be collegial.

Now and then, some veteran court watcher will tell a story about how Chief Justice Earl Warren told the other justices during deliberation over Brown v. Board of Education that nobody was writing a separate opinion, and that’s that. The story is almost certainly untrue. Certainly there’s no evidence for it.

Yet it’s a matter of historical record that Warren, along with Justice Felix Frankfurter, worked hard to achieve unanimity in the school segregation cases. Nowadays, Brown is regularly prefaced with “the Supreme Court’s unanimous opinion in” — the hard-earned unanimity having become a component part of the decision’s iconography.

Those of course were other days, and in many ways not better ones. And while the justices back then were probably as fractious as they are now, they were able to achieve consensus as they handed down what was then the most controversial decision in the court’s history.

This week’s bizarre sniping is depressing evidence that, on any current issue of remotely comparable importance or divisiveness, today’s court is unlikely to prove capable of speaking unanimously. We’re all worse off for it.

Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.

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