May 25, 2006
Great commentaries on SCOTUS unanimity honeymoon
Thanks to How Appealing, I see these two interesting commentaries today about the early trend of the Roberts Court favoring narrow unanimous opinions:
- Cass Sunstein has this op-ed in the Los Angeles Times entitled "Supreme Court: 9-0 is better than 5-4; Can the chief justice conquer the court's divide by aiming for unanimous rulings instead of swing-voting for the fences?"
- Edward Lazarus has this essay at FindLaw entitled "Is Chief Justice Roberts Correct that Unanimous Supreme Court Opinions Are Inherently Desirable? Why Split Decisions and Passionate Dissents Are Sometimes Better."
Among other good points in these pieces, Lazarus spotlights reasons why "the spate of unanimous rulings [may be] largely ephemeral" during what I will call a SCOTUS unanimity honeymoon in the early days of the Roberts Court. Indeed, as I have noted in posts linked below, the numerous criminal cases still to be over the next month will really test whether we have truly entered a brave new SCOTUS world:
- SCOTUS anticipation...
- The criminal justice test for Roberts' rules of order
- The impact of former prosecutor Alito
- Reading new Justice tea leaves
- A criminal closing act for SCOTUS
- Notable split habeas ruling from SCOTUS
May 25, 2006 at 10:40 AM | Permalink
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Though I rarely agree with Lazarus, I will second his motion that the more important point is not whether the Court is unanimous but rather whether there is a coherent opinion of the Court. The fractured decisions that leave us picking through the various opinions to figure out what the law is represent an institutional failure. The whole reason for having "one supreme Court" in the first place is to resolve the splits of authority.
That said, however, Roberts is right that the narrowing of opinions which is necessary to reach unanimity is what the Court should be doing anyway. The principle that the Court should not decide constitutional questions broader than necessary to decide the case has been more honored in the breach than the observance. It is good to know the new chief believes in it.
Posted by: Kent Scheidegger | May 25, 2006 1:51:18 PM
Don't worry, the 5-4s are coming. It is hard to imagine Kansas v. Marsh, as well as the other reargued cases, being anything other than 5-4.
Posted by: karl | May 25, 2006 2:44:25 PM
Whatever the result in Kansas v. Marsh, I hope the Court unanimously slaps down Marsh's counsel's suggestion that the Court lacks jurisdiction to decide the case because the State failed to seek cert in an earlier decision holding the Kansas statute unconstitutional and failed to reargue the issue in this case where the Court applied the earlier holding and, instead of adhering to its prior severance of the statute, facially invalidated it.
That argument, to me, is on par with Recuenco's suggestion that the Washington Supreme Court's judgment rests on state-law grounds.
Posted by: Steve | May 25, 2006 3:34:42 PM