Unanimity, collegiality, and nonpartisanship: These appear to be the goals for the U.S. Supreme Court under the leadership of Chief Justice John Roberts. This seeming unity on the Court, however, turns out to be only surface deep.
The most recent term showed a spike in unanimous decisions—nearly two-thirds of the 73 decisions—a level of agreement that has not been matched since before World War II. The level of sharply divided 5–4 decisions also reached a low—14 percent—that had not been seen since 2005. Dissenting opinions appeared less frequently, but in many cases they were replaced with concurring opinions that rivaled dissents in their disagreement in which the author concurred only because he or she agreed with the majority’s bottom line result. A few examples demonstrate the superficial nature of the Court’s unanimity:
- In Daimler AG v. Bauman, the Court threw out a lawsuit brought by foreign plaintiffs against a foreign defendant for conduct that occurred in a foreign country. Justice Ruth Bader Ginsburg wrote the 9–0 decision, finding that since Daimler is not “at home” in California, the plaintiffs could not sue Daimler in California for conduct that occurred in Argentina. Sotomayor concurred in the judgment but proclaimed that the majority was “wrong as a matter of both process and substance” and adopted “a new rule of constitutional law that is unmoored from decades of precedent.”
- The Court narrowly interpreted a federal law criminalizing the use of chemical weapons in Bond v. United States, finding that the federal prosecution of a scorned wife for spreading toxic chemicals on the property of her husband’s lover was not proper. Chief Justice Roberts authored the majority opinion, which concluded that applying the federal law implementing a chemical weapons treaty to such a garden-variety local crime would intrude on the state’s police power. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all agreed with the result overturning Bond’s conviction but not with the majority’s rationale. Scalia called the majority opinion “result-driven antitextualism” for avoiding the underlying constitutional issue about Congress’s ability to pass such a law.
- In McCullen v. Coakley, the Court held 9–0 that a state law creating a 35-foot no-speech “buffer zone” around abortion clinics violated the First Amendment. You read that correctly: The Supreme Court decided an abortion case without a single dissenting vote. Chief Justice Roberts wrote the majority opinion, holding that this law was unconstitutional because it was not narrowly tailored and burdened substantially more speech than was necessary to further the state’s objectives. The majority, however, found that since the law does not “favor one viewpoint about abortion over the other,” it was not subject to strict scrutiny review. Alito concurred in the result but noted that “critics of a clinic are silenced, while the clinic may authorize its employees to express speech in support of the clinic and its work.… This is blatant viewpoint discrimination.” Scalia also concurred, insisting that the majority’s reasoning followed “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”
- This divisiveness continued in Noel Canning v. NLRB, in which Justice Stephen Breyer wrote a 9–0 opinion striking down President Obama’s “recess” appointments to the National Labor Relations Board as unconstitutional. Though the majority opinion went against the Administration, it still supported a broad understanding of the President’s ability to make recess appointments. Scalia—joined by Roberts, Thomas, and Alito—wrote a concurrence that read more like a dissent, blasting the majority for allowing a President to wield more power than the Constitution allows:
[T]he majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structures of government.
With friends like these, who needs enemies? Chief Justice Roberts certainly has good intentions in working toward forging unity, but at what cost? With hot button issues such as same-sex marriage, abortion restrictions, and even more challenges to Obamacare heading toward the Supreme Court, it remains to be seen if Roberts can transform this surface-deep unanimity into true unity.
This piece originally appeared in The Daily Signal